In 1959 Godfrey Muhuri applied for a road service licence under the
Transport Licensing Act (hereinafter referred to as the Act), and his
application was approved. At that time he owned He invited a number of other
persons to contribute money for the purchase of a bus which was to be used
in providing a transport service under the road service licence on the
under¬ I standing that the persons who made such contributions were each to
receive a proportionate share of the profits.
 It was also agreed that he was to manage the transport business, though
some of those other persons performed some duties in that business. It is
now accepted by all parties that this arrangement resulted in a partnership
with all the contributors and Godfrey Muhuri being the partners.
 It is not clear whether the bus which was purchased was partnership
property, but without deciding such to be the position I shall assume it was
so for the purposes of this judgment.
 Following the arrangement I have referred to, a bus was purchased and
registered in the name of Godfrey Muhuri and a road service licence was
issued in the name of Godfrey Muhuri.This transport business was operated
and some time later the original bus was sold and the proceeds from the
sale, together with additional contributions from the partners, were used to
buy another bus which was again registered in the name of Godfrey Muhuri.
 Subsequently a dispute arose between the partl1ers and an action was
brought by some of them against Godfrey Muhuri and the remaining partners,
seeking, inter alia, an order that the partnership be dissolved and "that
the accounts of the partnership be taken and that all assets of the
partnership be sold. Godfrey Muhuri and the other defendants entered a
 Paragraph 9 of the defence contended that the partnership was entered
into to carry on the transport business without obtaining a licence in the
name of all the partners or without obtaining the prior consent to the
transfer of the licence issued to Godfrey Muhuri and, consequently, that the
partnership agreement could not be performed without a contravention of the
provisions of the Act and that the agreement was therefore void for
 When the matter came before Rudd, J. in the High Court it was agreed
that the question of illegality raised by the defence should be dealt with
as a preliminary issue. Evidence was taken and Rudd, J. ruled that Godfrey
Muhuri was in law the owner of the bus and the holder of the road service
licence and that under the arrangement he owned the bus and operated the
transport business subject to equities in favour of all the partners. The
judge also held that there was nothing in the contract resulting from the
arrangement which neither was illegal in itself, nor was it a contract which
could not be legally performed, accordingly, he held that that ground of
defence failed. From that decision Godfrey Muhuri and other defendant
partners have appealed.
 On appeal it was not at first suggested that the partnership agreement
was itself illegal, but in the end that point was made. I see nothing in the
evidence or the law which could lead me to differ in any way from the
decision of Rudd,J that the partnership agreement between a number of
persons to purchase a bus and to operate a transport service under a road
service licence is an illegal agreement. Accordingly that ground of appeal
 It was also argued by Mr. Nowrojee, who appeared for the appellants,
that the partnerships agreement was one which, while legal in itself, could
not be performed in any manner other than one contrary to the terms of the
Act an, accordingly, that agreement was one which could not be enforced by
the courts. Mr. Nowrojee accepted that there was a presumption in favour of
legality and that the onus of proof of illegality lay on him as he was
alleging illegality, but he submitted that by virtue of the provisions of
section 4 of the Act the agreement could not be performed in a legal manner.
In support of his submission he referred to the decision of Miles,J in the
unreported case of Mwangi V Mwangi Civil case No 1303 of 1961, in which it
was held, on facts which are all material respects indistinguishable, that
the partnership agreement could not be carried out without infringing the
provisions of the Act. Rudd, J., having considered the decision in that
case, came to the conclusion that it was wrong and declined to follow it.
Mr. Nowrojee submitted that Rudd, J was in error in so deciding and the
basis of his argument was as follows.
 Under section 4(1) (b) of the Act it is provided that:-
“No person shall, except under and in accordance with the terms of a licence
... for hire or reward convey any person by means of any motor vehicle"
and under section 5(5)(a)(i) it is provided that ¬
"The vehicles authorised to be used under a licence shall be such motor
vehicles, being vehicles belonging to the holder of the licence …, as are
specified in the licence."
 Mr. Nowrojee submitted that as the transport business was carried on by
the partnership and as the road service licence was in the name of Godfrey
Muhuri alone the partnership agreement could not be carried out without
infringing section 4(1)(b), because the person carrying on the transport
business, that is conveying other persons for hire or reward in a motor
vehicle, was the partnership which was not licensed. He also submitted that
the bus did not belong to Godfrey Muhuri as it was partnership property
under the partnership agreement, and, consequently, that the partnership
agreement could not be carried out without contravening section 5(5) (a) (i),
because the vehicle which was used under the licence did not belong to
Godfrey Muhuri, who was the holder of the licence.
 On both these points Rudd, J. held that the partnership agreement could
be carried out without contravening the sections in question. He held on the
first point that it was Godfrey Muhuri, the holder of the road service
licence, who was in fact operating the service on behalf of the partnership,
that this position was specifically permitted under the terms of the
partnership agreement, and, consequently that as Godfrey Muhuri was the
person licensed and the person operating the transport business no
contravention of section 4 was caused by the partner¬ ship agreement.
 I see no reason to disagree with Rudd, J., either on the facts or the
law. The evidence satisfies me that Godfrey Muhuri was, with the agreement
of the partners, to manage the transport business.
 The mere fact that some of the other parties performed duties in the
transport business did not result in Godfrey Muhuri ceasing to be the
manager. As manager he would operate the transport business on behalf of the
partnership. In effect he would be the person responsible for conveying the
passengers under the licence and he would be the person to whom the
Transport Licensing Board would look for the proper compliance with the
terms of the licence. Like the judge I do not think that such a position
would involve a contravention of section 4(1) (b).
 The position might well be different if Godfrey Muhuri in fact had not
been managing the transport business; but I cannot see why merely because a
person, who manages a transport business under a licence given to him, takes
a partner, the continued operation of the transport business contravenes the
provisions of section 4(1) (b). Mr. Nowrojee accepted, and I am quite sure
that he was right in so doing that in such circumstances and in the
circumstances of the present case there had been no contravention of section
12.The taking by the manager of a transport business of partners does not
amount to the transfer or sale of the business for the purposes of section
12 or 14.
 On the second point Rudd, J. held that as the bus was registered in the
name of Godfrey Muhuri the bus; in law, belonged to him subject to the
equities arising under the partnership agree¬ment and, accordingly, that no
contravention of section 5(5) (a) (i) had been committed as, for the
purposes of that section, the bus authorised to be used under the transport
licence belonged to the holder of the licence.
 Again, I see no reason to differ from Rudd, J. The bus was registered
in the name of Godfrey Muhuri and thus even if it was partnership property I
consider that it belonged to Godfrey Muhuri, the holder of the licence, for
the purposes of section 5(5) (a) (i).
 I see nothing in sections 16 and 11 and the Regulations made under the
Act which lead me to the view that the partnership agreement could not be
carried out without contra¬vening the provisions of the Act and the
Regulations made under the Act.
 For these reasons I consider the decision of Rudd, J. to be correct and
that of Miles, J. in Mwangi v. Mwangi (supra) to be incorrect and that the
decision of Miles, J. should be over-ruled.
 Accordingly I would dismiss the appeal with costs. As the other members
of the Court agree it is so ordered.
 I agree.
SPRY, J .A.
 I agree.