Kenya Safari Lodges & Hotels Ltd v Tembo Tours & Safaris Ltd

High Court, at Nairobi

December 19, 1975

Harris J

Civil Case No 161 of 1975

Civil Practice and Procedure – judgment in default - of appearance – setting aside – application for - matters which the court will consider in such application.

Civil Practice and Procedure – service – of summons to enter appearance – service upon corporation – service by registered post through address obtained from registrar of companies – whether such service proper – Civil Procedure Rules order v rule 2 – Companies Act (cap 486) section 391(1).

The plaintiff sued the defendant, a limited liability company, to which the summons to enter appearance were sent by the plaintiff’s advocates by registered post through an address obtained from the records of the registrar of companies. After the plaintiff had obtained judgment in default the defendant’s appearance, the defendant applied to set aside the judgment deponing that it had not received the summons. The plaintiff deponed in reply that the registered letter containing the summons had been returned to its advocates on the day following the court’s decision giving default judgment after the plaintiff failed to take delivery of it. The defendant contended that it had both a good defence and a counterclaim to the plaintiff’s suit.

Held:

1. Under Order V rule 2 of the Civil Procedure Rules and section 391(1) of the Companies Act (cap 486), service of summons had been validly effected on the defendant.

2. In an application for setting aside default judgment, the court will consider whether the defendant has any merits to which it should pay heed and if merits are shown, the court will not prima facie allow the 0default judgment to stand.

3. The court will have regard to the applicant’s explanation for his failure to appear after being served, though as a rule, his fault, if any, can be sufficiently punished by the terms as to costs or otherwise which the court in its discretion is empowered to impose.

Application allowed.

Cases

Evans v Bartlam [1937] AC 473; [1937] 2 All ER 646

Statutes

1. Civil Procedures Rules (cap 21 Sub Leg) order V rule 2; order IXA 10 rule 3(1)

2. Companies Act (cap 486) sections 30(1), 391(1)

Advocates

Messrs Kaplan & Stratton Advocates for the Plaintiff.

James Mulama v The Republic

High Court, Appellate Side, Nairobi 15th December 1975

Trevelyan & Chanan Singh JJ

Criminal Law – conspiracy – acquittal of all accused bar one – conviction of remaining accused quashed on appeal – undesirability of charging conspiracy when specific offence may be charged.

Case referred to in judgment:

R v Manning (1883) 12 QBD 241, 53 LJMC 85, 51 LT 121.

Appeal

James Mulama appealed against his conviction and sentence (Criminal Case No 1253 of 1975) at the Senior Resident Magistrate’s Court at Nairobi on two charges of conspiracy. He appealed on the ground that his coaccused had been acquitted.

JJ Odhiambo for the Appellant.

W Mbaya State Counsel for the Republic.

Phillips, Harrisons & Crosfield Ltd v Mansur B H Kassam

High Court, at Nairobi

December 9, 1975

Hancox J

Civil Case No 1088 of 1971

Civil Practice and Procedure - pleadings - amendment of pleadings - substitution of names of parties and title - addition of a new cause of action - principles of amendments - object of the rules on amendments - requirement of consent of the new plaintiff when adding a new cause of action - meaning of amendments that are prejudicial to other parties - considerations when allowing amendments - amendments after the limitation period has expired.

Civil Practice and Procedure - notice to admit - admission of facts - judgment on admission.

The plaintiff made an application to amend its plaint under the Civil Procedure Rules Order I rule 10 and Order VIA rule 3. The amendment proposed to introduce a new cause of action and to change the title of suit and name of the plaintiff. The application was challenged on the grounds that firstly; consent of the new plaintiff should have been obtained before the new plaintiffs could be added; secondly that the amendment would be prejudicial to the respondent and thirdly, that the application for amendment would defeat the defence of limitation.

Held:

1. An application for leave to amend should be allowed if it is necessary for the purpose of determining the real questions in dispute between the parties. This principle, however, only applies in respect of an amendment in the text of the pleading as distinct from the title, as was the case here.
2. Amendments may be allowed even where it involves substituting a new party if the mistake is genuine and not misleading. Such an amendment will also be allowed if failure to amend will cause reasonable doubt as to the identity of the person being sued.
3. Amendments that introduce a new cause of action may be allowed if the new cause of action raised is not entirely of a different character to, inconsistent with the original cause of action and/or stem from the same transaction.
4. Leave to amend should be freely granted if the amendment can be made without injustice, which cannot be compensated by way of costs, being occasioned.
5. An amendment adding a new plaintiff cannot be allowed unless the written consent of the new plaintiff is first obtained. However, the omission of the consent is not fatal to the application for leave to amend; because it can be rectified by asking the plaintiff to file a written consent.
6. An application for amendment cannot be allowed if the proposed amendment will defeat the defendant’s counter-claim and for this reason the application is disallowed.
7. The amendment in this case could not be allowed as it would occasion injustice to the respondent.
8. An application to amend cannot be granted if it was brought very late in the proceedings. In this instance, the plaintiffs delayed far too long in seeking the amendment and substitution.

Application to substitute plaintiff’s names disallowed, other amendments allowed.

Cases

1. British India General Insurance Co v Parmar [1966] EA 172 Approved & Applied
2. Baker v Medway Building Ltd [1958] 3 ACR 540 Approved & Applied
3. Eastern Bakery v Castelino [1958] EA 461 Approved
4. Tildesley v Harper (1878) 10 Ch D 393 Referred
5. Simonian v Johar [1962] EA 336 Applied
6. Khan v Rosham [1965] EA 289 Distinguished
7. Lombard Banking Kenya Ltd v Bhagwanji [1960] EA 969 at p 972 Approved & Applied
8. Duke of Buccleuch Case, 1892 p 211 cited at p 346 of the 1963 WhiteBook Approved & Applied
9. Mabro v Eagle, Star and British Dominions Insurance Company Ltd [1932] 1 KB 485 Referred
10. Mehta v Shah [1965] EA 321 Distinguished

Statutes

Civil Procedure Rules (Cap 21 Sub Leg) Order I rule 10, Order VIA rule 3, Order XXIII rule 3

Advocates

Miss Ohanga for Plaintiff

Mr AB Shah for Defendant

M K M v G M

High Court, Nairobi 10th, 13th, 14th, 15th, 16th, 17th October

Chesoni J 3rd November 1975

Divorce – matrimonial offence – cruelty – ingredients of cruelty – burden of proof – respondent bound by earlier court order.

Divorce – matrimonial offence – condonation – evidence – single act of intercourse not constituting condonation – lack of mutual intention – burden of proof.

Divorce – matrimonial offence – cruelty – conviction of criminal offence – causing actual bodily harm to complainant – conviction lacking requisite degree of gravity to constitute cruelty.

Divorce – matrimonial offence – adultery – evidence – guilty inclination of passion – need for – when corroboration of evidence of single witness requisite.

The husband and wife were married in 1961 in accordance with the African Christian Marriage Act. They lived together until 1966 when the wife applied for a decree of judicial separation on the grounds of her husband’s cruelty. In the course of the hearing of the wife’s application, the parties’ advocates reached agreement on terms and the decree was granted on those terms. In 1968, according to evidence subsequently given by the husband, the parties had marital intercourse. In the same year, the wife stabbed the husband with a knife and was convicted of causing him actual bodily harm. In 1972 the wife petitioned for divorce and cited the same incidents of cruelty as she had relied on in the earlier proceedings. She also cited two additional incidents which had occurred in 1966. The husband cross-petitioned for divorce on the grounds of cruelty and adultery and denied the allegations of cruelty in the wife’s petition. At the trial the husband gave evidence, but was evasive and did not seriously contradict, other than by mere denial, the wife’s evidence. The husband called witnesses of his wife’s alleged adultery; but the witness proved unreliable and the husband was unable to show that the wife had actually committed adultery with the co-respondents.

Held:

Granting the wife’s petition

(1) that the question whether cruelty had been established was a matter of degree and fact to be decided on all the circumstances of the particular case; to establish cruelty the complainant must show to the satisfaction of the Court

(i) misconduct of a grave and weighty nature,

(ii) real injury to the complainant’s health or reasonable apprehension of such injury,

(iii) that the injury was caused by misconduct on the part of the respondent, and

(iv) that on the whole of the evidence the conduct amounted to cruelty in the ordinary sense of that word.

Mulhouse v Mulhouse [1966] p39 applied.

(2) That the husband could not deny or dispute the acts of cruelty which had been the basis on which the decree of judicial separation had been made in the absence of any indication that the Court making that decree had reached a wrong decision, and those acts must be regarded as proved; and the husband had not effectively denied the additional acts of cruelty in 1966.

(3) That although the parties may have had intercourse in 1968, this in itself did not constitute condonation by the wife for which a mutual intention was required and the husband, on whom lay the burden of proving condonation on the balance of probabilities, had not discharged that burden.

(4) That the husband’s cross-petition would be dismissed as the wifes’ conviction of a criminal offence did not in itself constitute cruelty; in the present case, the cruelty lay in the act leading to the conviction and the conviction itself did not have the requisite degree of gravity to amount to cruelty.

Ingram v Ingram [1956] p 390 considered

(5)That the evidence required to establish adultery must be more than the mere suspicion and opportunity; evidence of guilty inclination or passion was necessary, nevertheless, the evidence of a single witness might suffice to establish adultery, unless that evidence aroused the suspicion of the court when corroboration would be required; the husband in the present case, having raised no more than a state of facts consistent with both guilt and innocence, had not discharged the burden of proving adultery beyond reasonable doubt.

Beer v Beer [1948] p10 applied.

Cases referred to in judgment:

Beer v Beer (Neilson cited) [1948] p10, [1947] 2 All ER 711.

Bethune v Bethune [1891] p205, [1886-90] All ER Rep 303, 60 LJP 18, 63 LT 259.

Gollins v Gollins [1964] AC 644, [1963] 3 WLR 176, [1963] 2 All ER 966, HL.

Horton v Horton [1940] p187, [1940] 3 All ER 380.

Ingram v Ingram [1956] p390, [1956] 2 WLR 782, [1956] 1 All ER 785.

Mulhouse (formerly Mulhausen) v Mulhouse (formerly Mulhausen)

 [1966] p39, [1964] 2 WLR 808, [1964] 2 All ER 50.

Russell v Russell [1895] p315, 64 LJP 105, 73 LT 295, CA.

Williams v Williams [1964] AC 698, [1963] 3 WLR 215, [1963] 2 All ER 994, HL.

Windeatt v Windeatt (No 2) [1963] p25, [1962] 1 WLR 527, [1962] 1 All ER 776, CA.

Petitions

The petition for divorce by M K M from G M was, by order of the court, consolidated with the cross-petition by the husband for divorce. The facts are set out in the judgment.

DV Kapila (instructed by DV Kapila & Co) for the Wife.

JD Murimi (instructed by Waruhiu & Waruhiu) for the Husband.

Ivita v Kyumbu

High Court, at Nairobi September 20, 1975

Chesoni J

Civil Suit No 340 of 1971

Civil Practice and Procedure – dismissal of suit – dismissal for want of prosecution – failure to set case down for hearing – test to be applied in applications for dismissal of suit – whether suit may be dismissed where defendant acquiesced in delay – whether inaction by defendant constitutes acquiescence or waiver – Civil Procedure Rules order XVI.

The plaintiff/respondent filed a suit against the defendant/applicant on 3^rd March, 1971 claiming certain money as the balance of his (plaintiff’s) shares in a business jointly carried out with the defendant. The defendant entered appearance and on 14th May, 1971, he filed his defence. No further step was taken in the case until 29th August, 1973 when the plaintiff’s advocate invited the defendant’s for the fixing of a mutually agreed hearing date at the court registry. The hearing dates, 29th and 30th July 1974, were, however, given ex parte as the defendant’s representative had failed to turn up, and the plaintiff’s advocate later served him with a hearing notice. On 9th April, 1974, the case was taken out of the hearing list at the request of the plaintiff’s advocate who did not assign any reason and who, apparently, did not inform the defendant’s advocate of this request. As no further action was taken in the case, the defendant, on 2nd April, 1975, filed an application under order XVI rule 5 of the Civil Procedure Rules. The plaintiff’s advocate, in opposing the application, argued, among other things, that rule 5 did not apply as it was more than three months from the date of the close of pleadings and that the defendant, by not exercising his right to apply for dismissal within the three months, he had waived that right or acquiesced in the delay.

Held:

1. The three months limitation period in the Civil Procedure Rules order XVI rule 5 does not apply to a defendant’s application to dismiss the suit and the defendant may take out a notice of motion to dismiss the suit for want of prosecution at any time after the three months limitation. A failure to take out such notice early does not prejudice the success of the defendant’s application.

2. A defendant who has waived or acquiesced in delay is not entitled to a dismissal of the action for want of prosecution but mere inaction on the part of such defendant does not amount to a waiver or acquiescence.

3. The test applied by the courts in an application for the dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and, if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time. It is a matter in the discretion of the court.

Application allowed.

Cases

1. ET Monks and Co Ltd v Y Evans and Three Others High Court Civil Case No 77 of 1971(unreported)

2. City Council of Nairobi v Habakuk Njiri Wandola High Court Civil Case No 583 1971

3. Reggentin v Beecholme Bakeries Ltd [1967] 111 Sol Jo 216; [1968] 1 All ER 566

4. Fitzpatrick v Batger & Co Ltd [1967] 2 All ER 657

5. Allen v Sir Alfred McAlpine [1968] 1 All ER 543

6. Saldanha & Others v Bhailal & Co & Others [1968] EA 28

7. Sheikh v Gupta & Others [1969] EA 140

8. Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696

9. Abdul & Another v Home & Overseas Insce. Co. Ltd [1971] EA 564

10. Nilani v Patel & Others [1969] EA 340

11. Paxton v Allsopp [1971] 3 All ER 370

12. Austin Securities Ltd v Northgate & English Stores Ltd [1969] 2 All ER 753

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order V rule 1; order XVI  rules 1, 2, 5, 6

2. Rules of the Supreme Court [UK] order 25 rule 1(4)

3. Partnership Act (cap 29) section 2

Advocates

Mr NC Patel for Defendant/Applicant

Mr Bhatt for Plaintiff/Respondent