Simba Clothing Factory Ltd & another v Bakshish Kaur Virdee

Court of Appeal for East Africa, Nairobi 19th November 1976

Wambuzi P, Musoke Ag V-P & Miller J

Damages – loss of dependency – inflation – effect of inflation on award

The deceased, aged fifty years, was killed in a car crash in 1972. The respondent, his widow, was awarded damages in 1975 by the trial judge for herself and for the benefit of her five children. The judge assessed the dependency at three-quarters of the deceased’s earnings of £1100 per annum. To this figure he applied a multiplier of eight, yielding a total of £6600. He then added £700 to this figure to take account of the loss in the value of money and the upheaval in the pattern of living of people in the country; but he did not specify the period to which the £700 related, nor how he had arrived at that figure. On the question whether such a figure was properly included in the award of damages,

Held:

That the effect of adding £700 to the quantum of damages was to put the respondent into a better position financially than she would have been had the deceased lived and it should therefore be disallowed. Per curiam. If the Court were considering damages awarded in a case for injuries sustained some years previously, inflationary trends might justify a higher award.

Zarina Akbarali Shariff v Noshir Pirosesha Sethna [1963] EA 239, EACA.

Action

Bakshish Kaur Virdee, the respondent and the widow of Kentar Singh Virdee who was killed in a motor accident, was awarded damages in the High Court (Madan J) on 25th August 1975 (Civil Case No 1855 of 1973) against Simba Clothing Factory Ltd and Satish Jivras Shah, who appealed to the Court of Appeal for East Africa (Civil Appeal No 28 of 1976). The respondent cross-appealed against the award of damages. The facts are stated in the judgment of Wambuzi P.

M da Gama Rose (instructed by Shapley, Bareet & Co) for the Appellants.

SC Gautama and L Gitao (instructed by GS Vohra) for the Respondent.

Sumer Singh Bachu v Nicholas Wainaina Kago Waweru

Court of Appeal, at Nairobi

September 4, 1976

Wambuzi P, Musoke Ag VP & Miller J

Civil Appeal No 14 of 1976

 Negligence - traffic accident - liability for jointly owned motor vehicle - vehicle being driven by one co-owner in his own right for his own purposes - no evidence of partnership between co-owners - whether liability attaches to the other co-owner in absence of evidence of his connection with accident - whether there is a presumption that the co-owner is vicariously liable.

Review - grounds for granting review - error apparent on face of the record - plaintiff’s counsel making statement that no evidence against the defendant - suit against defendant being dismissed - whether counsel’s statement can be a basis for review - Civil Procedure Rules Order XLIV rule 3.

Civil Practice and Procedure - default judgment - formal proof - burden of proof required at formal proof.

A suit was filed against the two defendants for damages arising out of an accident involving a motor vehicle jointly owned by them. The suit proceeded ex parte when the two defendants failed to enter appearance. The defendant who was driving the motor vehicle was found to have been negligent. The suit against the second defendant was dismissed as no evidence was adduced against him. About seven months later, the plaintiff made an application for review of the judgment, on grounds that there was an error on the face of the record. It was argued that the two defendants should have been found jointly liable. The application for review was dismissed. The plaintiff appealed.

Held:

1. At the ex parte hearing, the plaintiff was under a legal duty to prove his case against both defendants. This duty was not discharged against the second defendant.
2. The burden of proof at formal proof is the same as that required in any civil case.
3. The court cannot be expected to act on allegations in the plaint when the evidence adduced indicated clearly that the second defendant was not connected with the accident.
4. The mere fact that the second defendant owned the vehicle jointly with the first defendant did not make him jointly liable for the negligence of the second defendant.
5. One defendant is not necessarily liable for the costs of the other resulting from the use of the vehicle jointly owned. There should be some evidence of a common interest in the user of the vehicle before liability of the one can be attributed to the other.
6. Apart from a statement by the applicant’s counsel that the plaintiff made an error at the trial when he said that there was no evidence against the second defendant, nothing more was adduced for the consideration of the court thus the provisions of Order XLIV rule 3 of the Civil Procedure Rules could not apply.

Appeal dismissed.

Cases

1. Barnard v Sully (1931) 47 TLR 557 Distinguished
2. Hibbs v Ross (1860) 1 QB 534 Distinguished
3. Mohamed Akbar v Williams (1945) 12 EACA 39 Distinguished
4. Hewitt v Bonvin [1940] 1 KB p 188 Distinguished
5. Selle v Associated Motor Boat Company [1968] EA 123 Distinguished
6. Redmond v Griven [1926] KBD Distinguished
7. Jivandas & Co Ltd v Nakadama [1972] EA 489 at 490 Distinguished

Texts

1. E Terell, The Law of Running-Down Cases, Butterworths & Co: London, 3rd Edn (1945) p 127

2. AL Armitage, et al, (Ed), Clerk & Lindsell on Torts, Sweet & Maxwell: London, 13th Edn (1969) paras 216, 254

3. L Bingham, Motor Claims Cases, Butterworths & Co: London, 4th Edn (1960) pp 116, 117 and 118

Statutes

Civil Procedure Rules (Cap 21 Sub Leg) Order IXA rule 8, Order XLIV rule 1, rule 3

Advocates

Mr Gautama & Mr O Kapila for Appellant

Vyas Industries v Diocese of Meru

Court of Appeal, at Nairobi

August 6, 1976

Law VP, Mustafa & Musoke JJA

Civil Appeal No 23 of 1976

Civil Practice and Procedure - pleadings - contents of pleading in running down matters - plaint not containing averments that driver in a running down case was employed by owner of the vehicle - plaint only disclosing that appellant owned the vehicle - whether plaint must be amended to contain averment of authority of employment of driver - whether failure to include the averment makes the plaint defective for failure to disclose a cause of action.

Civil Practice and Procedure - issues - unpleaded issue - whether judge can make finding on an unpleaded issue - no pleading that the driver was in the course of his employment - whether evidence can be led to prove fact of employment - when a matter becomes an issue in a suit - when an unpleaded issue becomes an issue.

Negligence - apportionment of liability - when decision on apportionment of blame can be interfered with by appellate court - driver of motor vehicle hitting unlit stationary lorry at night from behind - test of determining contributory negligence.

The plaintiff’s/respondent’s vehicle collided with the defendant’s/ appellant’s stationary unlit truck. The respondent successfully sued the appellant for damages in the High Court. The appellant appealed against this decision on three main grounds namely, that the plaint disclosed no cause of action as the plaint contained no allegation that liability was vicarious, he being the owner of the lorry but not the driver at the time of the accident, that the issue of vicarious liability never became an issue in the suit and that the apportionment of blame was wrong in principle.

Held:

1. The plaint was defective because it did not contain an averment that the defendant (a firm) was vicariously liable and it should have been amended. However, despite the defect, the plaint did, in fact disclose a cause of action, as it alleged ownership which is sufficient to raise a presumption that the lorry was being driven by a person for whose negligence the defendant was responsible.
2. The court may base its decision on an unpleaded issue if during the course of the trial the issue has been left for the decision of the court. In this instant, the issue was left for the court’s decision when the appellant addressed the court and led evidence on the issue.
3. The trial judge was correct in holding that the driver of the lorry was employed by the defendant and that the defendant was vicariously liable for his negligence.
4. The appellate court will not interfere with the issue of apportionment of liability unless the judge came to a manifestly wrong decision or based his apportionment on wrong principles which was the position in this case. Greater blame attaches to the driver who rams into an unlit stationary vehicle on a straight road thus the plaintiff’s driver was more liable for the accident.

Appeal dismissed. Apportionment of blame varied accordingly.

Cases

1. Hewitt v Bonvin [1940] 1 KB 188 Applied & Approved
2. Barnar v Sully (47 TKL 557) Applied & Approved
3. Karisa v Solanki [1969] EA 318 Applied & Approved
4. Odd Jobs v Mubia [1970] EA 476 Applied & Approved
5. Patel v Yafesi [1972] EA 28 Applied & Approved

 Statutes

No statute referred to.

Advocates

Mr Sharma for Appellants

Mr Havelock for Respondents

Commissioner of Income Tax v Lerematesho Ltd

Court of Appeal for East Africa, Nairobi 31st May 1976

Wambuzi P, Mustafa & Musoke JJ A

Income tax – profits from business – whether business being carried on – onus of proof – East African Income tax Management Act (cap 24, Laws of the Community) sections 3, 103.

The taxpayer company was incorporated in 1957. Its main object was to carry on the business of farming, but its objects clauses were drawn very widely and included a power to purchase and sell shares in other companies. Acting under this power, the taxpayer company bought and sold shares from 1967 onwards; originally, these shares were intended to be held purely as an investment. The Commissioner of Income Tax did not attempt to make any assessment in respect of these transactions under section 3 of the East African Income Tax Management Act until the year of income 1971 when the taxpayer company had made a profit of £6341 from this side of its business. The taxpayer company, denying that it had been carrying on a business of dealings in shares, appealed against the assessment to the local committee. The local committee found that the shares had originally been purchased as an investment and that their sale was merely a realization of that investment; it accordingly ruled in favour of the taxpayer company. The commissioner appealed to the High Court.

The appeal was dismissed. The judge, apparently relying on the findings of fact made by the local committee, held that the failure of the commissioner to raise any assessment on such transaction before 1971 raised a presumption that such profits were not chargeable to income tax; and hence that it was for the commissioner to show that the purpose for which the transactions were carried out had changed and that they were subject to income tax. On further appeal by the commissioner,

Held:

Allowing the appeal,

(1) The judge had referred to the findings of the local committee without any indication whether he agreed with them or accepted them, whereas he was required under section 103(d) of the East African Income Tax Management Act to evaluate the evidence and reach his own conclusions.

O v Commissioner for Income Tax, 1 EATC 124 applied.

(2)That once an assessment to income tax had been made on the taxpayer company the onus of proving that the assessment was excessive was placed upon the taxpayer company by section 103(c) and it had failed to discharge that onus.

Dunn Trust Ltd v Williams (Inspector of Taxes) (1950) 31 TC 477 distinguished.

Cases referred to in the judgement:

Commissioner of Income Tax v NR Bapoo, 2 EATC 397.

Dunn Trust Ltd v Williams (Inspector of Taxes) (1950) 31 TC 477.

O v Commissioner of Income Tax, 1 EATC 124.

Appeal

The Commissioner of Income tax appealed to the Court of Appeal for East Africa (Civil Appeal No 7 of 1976) against a decision of Chesoni J in the High Court (Civil Appeal No 56 of 1974) dated 16th September 1975 in which he upheld a ruling of the Nairobi local committee discharging an assessment made by the commissioner on Lerematesho Ltd in respect of dealings in stocks and shares in the year of income 1971. The facts are set out in the judgment of Wambuzi P.

OM Da Silva and Keiwua (instructed by the Attorney-General) for the Commissioner.

C Salter QC and KA Fraser (instructed by Hamilton Harrison & Mathews) for the Taxpayer Company.

Cur adv vult.

Mwangi Mahita v The Republic

Court of Appeal for East Africa, Nairobi 27th May 1976

Law V-P, Mustafa & Musoke JJ A

Criminal law – evidence – identification – identification parade – irregularity in holding parade – whether irregularity necessarily leading to exclusion of evidence.

Whether or not the conduct of an identification parade is so irregular as to necessitate its being disregarded is a question of degree to be decided in the light of the circumstances in each case. Accordingly, whether two of the fourteen people in an identification parade were suspects, as the irregularity did not cause prejudice or require that the evidence be excluded, the Court could properly admit the evidence.

R v Mwango (1936) EACA 29 and Mboche v The Republic [1973] EA 95 distinguished

Cases referred to in judgment:

Mboche v Republic [1973] EA 95.

Osongo v Republic [1972] AE 170.

R v Mwango (1936) 3 EACA 29.

Appeal

Mwangi Mahita appealed to the Court of Appeal for East Africa (Criminal Appeal No 56 of 1975) from the dismissal by Harris J in the High Court at Nairobi (Criminal Appeal No 757 of 1971) on 3rd September 1971 of his appeal against conviction and sentence to twenty years’ imprisonment for armed robbery. The facts are set out in the judgment of the court.

JW Onyango for the Appellant

DW Karanja for the Republic

Lalji Meghji Patel v Karsan Premji

Court of Appeal for East Africa, Mombasa 11th May 1976

Wambuzi P, Law V-P & Mustafa JA

Fundamental rights and freedom of conscience - non-interference with matters of religion and conscience- action seeking to regulate internal matters of religious organisation misconceived- Constitution of Kenya, section 78.

The freedom of conscience guaranteed by section 78 of the Constitution precludes the Courts from interfering in matters of religion and conscience except where there is a breach of the law; accordingly, the Courts would not interfere with matters of dogma, ritual or other internal matters within the competence of a church or religious establishment.

No cases were referred to in the judgments.

Appeal

Lalji Meghji Patel, chairman of Shree Cutch Satsang Swaminarayan Temple, Nairobi, appealed to the Court of Appeal for East Africa (Civil Appeal No 61 of 1975) against the decision of Sheridan J in the High Court at Mombasa (Civil Case No 368 of 1973) in which he dismissed the appellant’s action against Karsan Premji, the respondent and the chairman of the Shree Cutch Satsang Swaminarayan Temple, Mombasa, for declarations and injunctions. The facts are set out in the judgment of Law V-P.

Aya Jiwaji (instructed by Bhandari & Bhandari) for the Appellant.

Sadiq Ghalia for the Respondent.

Christopher Kiprotich v Daniel Gathua & 5 others

Court of Appeal for East Africa, Nairobi 30th April 1976

Wambuzi P, law V-P & Mustafa JA

Judgment – judgment based on admissions of fact – jurisdiction – admissions arising from failure to file pleadings – plaintiff failing to file reply to counterclaim – subject-matter of counterclaim indivisible from that of plaint – plaint not struck out – whether proper to award judgment on admissions - Civil Procedure Rules, order XII, rule 6.

Time – adequacy of notice – “sufficient notice” – one clear day’s notice of motion for judgment in default of defence – Civil Procedure Rules, order L, rule 4 – judgment – form – award of damages – award unquantified – costs and interest similarly unquantified – impossibility of drawing up order

The jurisdiction to award judgment on admissions under the Civil Procedure Rules, order XII, rule 6, resulting from a failure to reply to a counterclaim should only be exercised in the clearest of cases and never where the subject-matter of the counterclaim is so closely related to the subject-matter of the plaint as to the indivisible and the plaint has not been struck out or dismissed. Even where the subject-matter is distinct and divisible, a party who had appeared but is in default of pleading should not be debarred from defending if he can indicate the existence of a defence which is not patently frivolous and which he wishes to put forward. Rogers v Woods [1948] 1 All ER 38 applied:

The appellant issued proceedings against the respondents in which he claimed damages for forcible entry and trespass to land. The respondents, in their defence and counterclaim, asserted that they had purchased the land from the appellant and applied to have the appellants’ suit dismissed, and also for an order transferring the land to them and damages for breach of contract. The appellant’s advocate sought particulars of the defence and counterclaim but, as a result of what he claimed to be an oversight, omitted to apply for an extension of time in which to file a reply and defence to the counterclaim. The respondents, on giving the appellant only one clear day’s notice, moved for judgment on the counterclaim asserting that under order VIII, rule 17(5), of the Civil Procedure Rules the appellant must be deemed to have admitted the facts in the counterclaim. The appellant did not appear at the hearing and judgment was entered against him on the counterclaim under order XII, rule 6. The judge gave the respondents jugdment for the transfer of the land, unquantified costs for ploughing, unquantified general damages for breach of contract and “costs and interest”. An ex parte application to set aside the judgment was dismissed. On appeal,

Held:

Allowing the appeal and setting aside the judgment,

(1) That one clear day’s notice of the motion for judgment was not “sufficient notice” within order L, rule 4.

(2) That, in awarding specific performance of the alleged contract of sale and general damages, the judge had failed to quantify the damages and no evidence of damage had been adduced.

(3) That no order could be drawn upon the judgment since the amount of costs awarded for ploughing, the general damages for breach of contract, and the “costs and interest” had not been quantified.

(4) That, for the reasons stated, supra, the jurisdiction to enter judgment on admissions arising from a failure to file a reply to a counterclaim should not have been exercised.

Cases referred to in judgment

Jamnadas v Soda v Gordhandas Hemraj, 7 ULR 7.

Mbogo v Shah [1968] EA 93.

Rogers v Woods [1948] WN 13, [1948] 1 All ER 38.

Appeal

Christopher Kiprotich appealed (Civil Appeal No 19 of 1976) from an order of Nyarangi J in the High Court at Nairobi on 9th February 1976 (Civil Case No 58 of 1975) in which he ordered specific performance of an alleged contract for the sale of land and, inter alia, damages to be paid by the appellant to the respondents, Daniel Gathua, Mbugua Nganga, Perminas Kamau, Richard Gatheca, Geoffrey Githae, James Wainaina (trading as Kamwogo Farmers Co). The facts are set out in the judgment of Law V-P.

PN Khanna for the Appellant.

WB Waweru for the Respondents.

Cur adv vult.

Karatina Garments Ltd v David Nyanarua

Court of Appeal for East Africa, Nairobi 30th April 1976

Wambuzi P, Mustafa & Musoke JJ A

Service of process – dispute – evidence – affidavit by process-server – alleging service – affidavit by alleged recipient denying service – examination of deponents on oath.

Where one party to proceedings denies having been served with a relevant= document, it is proper for the Court to look into the matter; if the Court is faced with conflicting affidavits as to the alleged service of process, it is proper that the deponents should be examined on oath in order to establish the truth.

No case was referred to in the judgment.

Appeal

Karatina Garments Ltd appealed to the Court of Appeal for East Africa (Civil Appeal No 6 of 1976) from an order of Chesoni J in the High Court at Nairobi dated 13th August 1975 in which he set aside a default judgment in favour of the appellant against David Nyanarua (trading as Boisanga Wool Shop), Civil Case No 667 of 1975).

DN Khanna and JH Sampat (instructed by JH Sampat) for the Appellant.

PK Tunoi (instructed by Mbito, Wafula & Kapten) for the Respondent.

Pemcloth Enterprises Ltd v Ishwarbhai Naranbhai Patel & 3 others

Court of Appeal for East Africa, Nairobi 19th March 1976

Law V-P, Mustafa & Musoke JJ A

Pleading – amendment – amendment of plaint – costs up to time of amendment – discretion of court – inherent jurisdiction – Civil Procedure Rules, order VIA, rule 2(2)

Stare decisis – English decisions – authorities on points of practice – nineteenth century English decisions.

The respondents filed a plaint claiming payment of site value tax from the appellant in accordance with the terms of an oral agreement. The appellant’s defence disclosed that he relied on a statutory provision whereby he, as a lessee, could only be liable for payment of tax in accordance with the terms of a written agreement. The respondents (who were the lessors) thereupon filed an amended plaint under order VIA, rule 1, of the Civil Procedure Rules. In it they abandoned the oral agreement as the basis of their claim and asserted that the appellant was liable to pay the tax under the terms of his lease. The appellant did not dispute the amendment but applied to the Court for his costs up to the date of the filing of the amended plaint. The judge considered whether the plaint as amended raised a new cause of action; but he ruled that it did not as it was no more than an elaboration of the original plaint. He dismissed the application, leaving the question of the costs of the amendment to be considered at the trial of the action. He awarded the costs of the application itself to the respondents. On appeal,

Held:

That even if the amended plaint substituted a new cause of action, it was proper that the amendment should be allowed under order VIA, rule 3(5), of the Civil Procedure Rules and the wide discretion as to costs under rule 2(2) was not affected by the introduction of a new cause of action pleaded as of right and based on the same facts as the original cause of action, accordingly, the judge’s order would not be upset save as to order that the costs of the application itself were costs in the cause. Bourne v Coulter (1884) 50 LT 321 considered. Kernot v Critchley (1867) 17 LT 134 and Blackmore v Edwards [1879] WN 175 not followed.

Observations on the citation of nineteenth century English cases on points of practice.

Cases referred to in judgment:

Blackmore v Edwards [1879] WN 175.

Bourne v Coulter (1884) 53 LJ Ch 699, 50 LT 321.

Kernot v Critchley (1867) WN 252, 17 LT 134.

Appeal

Pemcloth Enterprises Ltd appealed to the Court of Appeal for East Africa (Civil Appeal No 39 of 1975) from an order of Sachdeva Ag J in the High Court at Nairobi of 30th June 1975 in which he dismissed an interlocutory application by the appellant for costs in proceedings (Civil Case No 1292 of 1974) commenced against the appellant by the respondents, Ishwarbhai Naranbhai Patel, Rajnikant Ishwarbhai Patel, Purshottambhai Ishwarbhai Patel and Vinubhai Ishwarbhai Patel. The facts are set out in the judgment of Law V-P.

RN Khanna (instructed by Khanna & Co) for the Appellant.

S Gautama and VRD Patel (Instructed byJJ Patel & Co) for the Respondents.