BJ Mohamedali v Keki Cawasji N Dastoor

High Court, Mombasa 15th, 18th, 25th October 1976

Sheridan J

Registered land - ownership in common - dealing in undivided share in land - need for written consent of co-proprietor - application that consent be dispensed with by Court - burden of proving that consent unreasonably withheld - Registered Land Act (cap 300), section 103(2)

Originating summons

The applicant, BJ Mohamedali, applied to the Court by originating summons (miscellaneous civil cause I (CS) of 1976) to dispense with the consent of Keki Cawasji Dastoor, the respondent, to the transfer of an undivided half share in registered land. The facts are set out in the judgment.

AYA Jiwaji (instructed by Jiwaji & Jiwaji) for the Applicant.

KM Pandya (instructed by Pandya & Talati) for the Respondent.

Cur adv vult.

IP Enterprises Ltd v Uneximp Ltd

High Court, Mombasa 8th, 15th October 1976

Sheridan J

Contract – terms of contract – standard form contract – contract concluded by telex messages – intention of parties that contract should be in standard form – standard form contracts duly signed by plaintiff and dispatched to defendant – defendant failing to sign contracts – whether contracts incorporated standard terms

The defendant company was an exporter and, by an exchange of telex messages in 1974, concluded five contracts with the plaintiff company for the dispatch of cottonseed produce to the plaintiff. The parties intended that the contracts should be subject to the standard terms of the Grain and Feed Trade Association (“GAFTA”) and references were made in the telex messages to those terms. GAFTA terms included an arbitration clause for the settlement of disputes. After the contracts had been concluded, the plaintiff sent copies of contracts incorporating the GAFTA terms to the defendant. These were duly signed on behalf of the plaintiff. The defendant, however, did not sign the contracts as it did not wish to be bound unless the subject matter of the contract was delivered to it in the first instance. The plaintiff sued for damages under the contract. The defendant, in reliance on the arbitration clause contained in the standard GAFTA form of contract, applied to the Court for a stay of proceedings.

Held:

That although contracts were concluded between the parties by the exchange of telex messages setting out the particulars of the agreements, these contracts were not in GAFTA terms since the defendant had deliberately omitted to sign the form, and this omission defeated the original intention of the parties in this respect; accordingly, the arbitration clause in the GAFTA form was not incorporated into the contracts and the application for a stay of proceedings would be dismissed. Frank Fehr & Co v Kassam Jivraj & Co Ltd (1949) 82 LIL Rep 673, CA, considered.

Case referred to in judgment:

Fehr (Frank) & Co v Kassam Jivraj & Co Ltd (1948) LIL Rep 673, CA.

Motion

The defendant, Uneximp Ltd, in Civil Case No 683 of 1975 (Mombasa district registry) filed a notice of motion to stay the proceedings commenced by the plaintiff, IP Enterprises Ltd, on the ground that any dispute between the parties should be settled by arbitration. The facts are set out in the judgment.

IT Inamdar (instructed by Bryson, Inamdar & Bowyer) for the Plaintiff.

Ramesh Shah (instructed by Shah & Shah) for the Defendant.

Cur adv vult.

Abdulali Jiwaji & Company v Shamvi Holdings Ltd

High Court, at Mombasa

July 13, 1976

Sheridan J

Civil Case No 263 of 1976

Civil Practice and Procedure – Summary judgment - whether landlord seeking vacant possession together with rent or mesne profits can obtain summary judgment – Civil Procedure Rules order 35 rule 1(1) (b) and (2).

Landlord and Tenant - breach of covenant to repair – tenant not liable for acts done prior to execution of lease.

Landlord and Tenant – lease – habendum of a lease referring to a period prior to execution of a lease – whether period can be reckoned in determining duration of the lease.

The applicant, who was a landlord and the plaintiff in the suit, sought summary judgment against the defendant for vacant possession of thedemised premises without rent as the latter was in dispute.

The defendant resisted the application contending that the tenancy in issue having been a controlled tenancy prior to the execution of the formal lease, continued to be one, as the period between the date of its execution to the date of its expiry was less than five years. The defendant therefore contended that the High Court had no jurisdiction to entertain the suit and the right forum ought to have been the Business Premises Rent Tribunal.

Held:

1. The court is not sure if the recovery of land can be divorced from the claim for rent or mesne profits as to do so means ignoring the word “and” in the last line of rule 1(1) of order XXXV of the Civil Procedure Rules.

2. In an action for breach of covenant to repair in a lease, a tenant is not liable for acts done before the time of execution of the lease. 3. The lease commenced on the date of execution and was for a term calculated from that date.

Application dismissed

1.Shaw v Kay (1847)1 Exch 412; 17 LJ Ex 17; 154 ER 175

2. Cadogan (Earl) v Guinness [1936] 2 All ER 29; [1936] Ch 515; 105 LJCh 255; 155 LT 404

3.Roberts v Church Comrs for England [1971] 3 All ER 703; [1972] 1 QB 278; [1971] 3 WLR 566, CA

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1(1)(b), 1(2)

2. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) sections 2(1)(a), 2(1)(b)(i), 3

Advocates

Mr Jiwaji for the Applicant

Mr M Satchu for the Respondent

P K M v A G R

High Court, at Mombasa

February 3, 1976

Sheridan J

Criminal Appeal No 251 of 1975

(Appeal from the Resident Magistrate’s Court at Mombasa)

Children – custody of – application for orders for – by putative father – rights of a putative father to custody – jurisdiction of the juvenile courts– – factors to be considered when awarding custody – Children and Young Persons Act (cap 141) sections 22(c), 25 - Guardianship of Infants Act (cap 144) section 2.

Following an application made to a Juvenile Court by a Children’s Officer under section 25 of the Children and Young Persons Act (cap 141), the Court ordered that two children, who lived with their maternal grandmother, were to remain with their mother and that their father would be allowed access to them. In due course, the father informed the magistrate that the mother had ran away with the children and a summons was issued for her to attend court. However, on the day before the summons were returnable and in the absence of the mother, the magistrate ordered the issuing of a warrant for her arrest. The mother appealed against the decision of the magistrate and contended that the Juvenile Court had no jurisdiction to make the orders it had earlier issued.

Held:

1. The main consideration in matters of custody is the welfare of the children and in this instance the proper person to have custody was their mother.
2. In the absence of evidence of an existing marriage between the father and the mother of the children, the putative father had no right of custody of the children.
3. The proper procedure where a father wishes to obtain the custody of children who are not otherwise shown to be with a parent who is incapable of exercising proper care over them is to apply to the High Court under the Guardianship of Infants Act (cap 144).
4. The juvenile court had no jurisdiction to make its orders under section 25 of the Children and Young Persons Act as this was not a case in which the children were in need of protection or discipline as envisaged under section 22 of the Act.
5. The proceedings by the magistrate in which a warrant of arrest was ordered to be issued against the mother were irregular as they amounted to condemning her without giving her an opportunity of being heard

Appeal allowed, mother to have custody of the children.

Cases

No cases referred to.

Statutes

1. Children & Young Persons Act (cap 141) sections 22(c), 25
2. Guardianship of Infants Act (cap 144) section 2

 Editorial Note

The Children and Young Persons Act (cap 141) and the Guardianship of Infants Act (cap 144) were repealed vide The Children Act 2001 which consolidated the law relating to parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and the protection of children.