Nguyai v Ngunayu

High Court, at Nairobi

December 16, 1976

Muli J

Civil Case No 940 of 1971

Res Judicata - application of the doctrine - circumstances under which a plea of res judicata can succeed- elements of res judicata - where issues in previous suit different from those in subsequent suit - where one party in subsequent suit not a party to previous suit - whether res judicata applicable

Limitation of Actions- suit for recovery of land - barring of suit by limitation- when time begins to accrue in favour of the person claiming recovery of land - Limitation of Actions Act (cap22) sections 7, 9, 13.

Adverse Possession – claim of – when a person can be said to be in adverse possession –when time begins to run in favour of an adverse possessor.

Land Control Act – application of Act - land to which Act applies - agricultural land - suit for recovery of land based on agreement of sale - suit land not declared to be agricultural land at the time of the agreement - whether

The plaintiff filed a suit against two defendants in which he averred that in 1958, he concluded an agreement for the purchase a portion of the suit land from the 1st defendant as a result of which he (the plaintiff) moved into possession of the portion. It was further averred that in 1964, the 1st defendant transferred the entire piece of land, including the plaintiff’s portion, to the 2nd defendant who in turn refused to transfer the plaintiff’s portion to him. In fact, the 2nd defendant filed a suit against the plaintiff for eviction in which it was decided that the plaintiff (then the defendant) was to vacate the land.

The plaintiff in the present prayed for a declaration that he was entitled to the portion of the land which he had purchased from the 1st defendant and that the 2nd defendant be ordered to transfer that portion to him.

The defendants denied the existence of a sale agreement between the plaintiff and the 1st defendant and averred that the sale to the 2nd defendant was free from all encumbrances and without notice of another agreement in respect of the land. In the alternative, they pleaded that the sale to the plaintiff, if any, was rendered void by the provisions of the Land Control Act or the plaintiff’s claim was time-barred under the Limitation of Actions Act. They also pleaded that the plaintiff’s claim was res judicata by virtue of the decision of the court in the 2nd defendant’s suit against the plaintiff.

Held:

 1. On a balance of probabilities, the plaintiff had established his claim to a portion of the suit land on account of a sale agreement between him and the 1st defendant.

 2. The doctrine of res judicata could not apply against the plaintiff and the 1st defendant as the 1st defendant had not been a party to the previous suit and therefore the issues between him and the plaintiff were neither investigated nor resolved in that suit. The present case was founded on the sale agreement between the plaintiff and the 1st defendant, which was distinct from the issue of eviction on which the previous suit was founded.

3. Under the Limitation of Actions Act (cap 22) the time of limitation will run against the person claiming to recover land from the date of accrual of the cause of action. The plaintiff’s claim was not time-barred as his action had not been brought after 12 years from the date of the accrual of the cause of action.

4. A right of action to recover land by adverse possession does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run and no right of action can accrue unless the land is in the possession of an adverse possessor.

5. In order for the provisions of the Land Control Act (cap 302) to apply to certain land, that land must have been declared to be agricultural land within the meaning of the Act.

6. The disputed land was not within a controlled area by the time of the sale agreement and the Land Control Act could not have retroactive effect, as it came into force subsequent to the agreement.

 The sale agreement was therefore not nullified by the provisions of the Act.

 Judgment for the plaintiff.

 Cases

Gachie v Kamau Gatibaru Kiambu Civil Case No 115 of 1970 (unreported)

Statutes

 1. Limitation of Actions Act (cap 22) sections 7, 9(1), 13(1)

 2. Land Control Act (cap 302) sections 3, 4

Advocates

 Mr Kamere for the Defendants

K v K

High Court, Nairobi 12th, 13th, 14th, 15th, 27th, 28th, 29th October

Simpson J 29th November 1976

Marriage – property questions – property acquired by joint venture – imputation of trust – right of woman to hold property under Kikuyu customary law – Married Women’s Property Act 1882 (England) (45 & 46 Vict c 75), section 17.

Kikuyu customary law has changed radically since the days when land belonged to the tribe and section 17 of the Married Women’s Property Act 1882 of England together with the English authorities decided thereunder is applicable to an African husband wife in Kenya where both are in salaried employment and contributing to household expenses and the education of the children. The fact that property acquired after marriage is put into the name of the husband alone and that the husband has evinced no intention that his wife should share in the property does not necessarily exclude the imputation of a trust nor preclude the wife in appropriate circumstances from obtaining a declaration that the property acquired by virtue of a joint venture is held on trust for them both.

Pettitt v Pettitt [1970] AC 777, HL, I v I [1971] EA 278, Gissing v Gissing [1971] AC 886, HL, and Hazell v Hazell [1972] 1 All ER 923, CA, applied

Cases referred to in judgment:

Chapman v Chapman [1969] 1 WLR 1367; [1969] 3 All ER 476, CA.

Falconer v Falconer [1970] 1 WLR 1333; [1970] 3 All ER 449, CA.

Gissing v Gissing [1971] AC 886; [(1970] 3 WLR 255; [1970] 2 All ER 780, HL (E).

Hazell v Hazell [1972] 1 WLR 301; [1972] 1 All ER 923, CA. I v I [1971] EA 278.

Pettitt v Pettitt [1970] AC 777; [1969] 2 WLR 966; [1969] 2 All ER 385, HL (E).

Originating summons

AK issued an originating summons (Civil Case No 123 of 1975) claiming declarations of entitlement to certain property registered in the name of her former husband J K. The facts are set out in the judgment.

JM Khaminwa (instructed by Khaminwa & Khaminwa) for the Plaintiff.

PK Muite (instructed by Waruhiu & Muite) for the Defendant.

Cur adv vult.

Peter Mark Gershom Ouma v Nairobi City Council

High Court, Nairobi 24th, 25th, 26th, 27th, 28May

Chesoni J 24th November 1976

Damages - wrongful eviction - measure of damages - whether damages assessable by reference to payments for premises – special damage not proved – failure to establish wanton and intentional interference so as to justify award of exemplary damages

In 1969 the plaintiff agreed to purchase premises from the Council. He paid a deposit, and the balance of the purchase price was payable by 240 monthly instalments of Shs 607; comprising principal and interest. The agreement stated that in default of payment of any instalment for fourteen days, the outstanding’ balance of the purchase price would become payable forthwith on demand by the Council. Also, on default of payment, the council could determine the agreement on one month’s notice and resume possession of the premises. In February 1974 the Council gave the plaintiff notice that he was in arrears in payment of the instalments of the purchase price. On 18th March, the Council served a letter dated 1st March which constituted notice under the agreement of its intention to terminate the agreement and to enter into possession of premises. On 9th April, when he was absent from home, the plaintiff was formally evicted and his possessions removed from the premises. After three days he regained possession. He then instituted proceedings against the Council for wrongful eviction and for loss and damage to his possessions following the wrongful eviction. In his plaint, the plaintiff listed items of property which he alleged had been stolen or damaged; but at the trial he failed to adduce proof of such loss or damage. On the question of the damages to which he was entitled,

Held:

(1) the failure of the Council to give one month’s notice to terminate the agreement rendered the termination unlawful, and the eviction, which was dependent upon the termination, also unlawful, and the plaintiff was, accordingly, entitled to an award of damages.

(2) Although special damages had been specifically pleaded by listing in the plaint the items alleged to have been stolen or damaged, the plaintiff’s failure to prove such damage at trial with certainty and particularity precluded the Court from making any award of special damages. Ratcliffee v Evans [1892] 2 QB 524, CA, applied

(3)It was not proper to base the award of general damages on the amount of the monthly instalments due under the agreement; nor was it possible to specify another particular yardstick; applying therefore the criterion of the opinion and judgment of a reasonable man the Court would award Shs 2000 plus relevant expenses as general damages for the wrongful eviction.

Prehn v Royal Bank of Liverpool (1870) LR 5 Exch 92 applied.

(4) Although the Court could award exemplary damages for torts affecting property where there was a wanton and intentional interference with the property, there was no evidence in the present case of the council’s servants or agents acting with a high hand and there was, accordingly, no justification for awarding exemplary damages.

Dumbell v Roberts [1944] 1All ER 326, CA, applied.

Cases

Ashby v White (1703) 2 ld Raym 938; Holt KB 524; 92 ER 126.

Dumbell v Roberts [1944] 1All ER 326, CA.

Prehn v Royal Bank of Liverpool (1870) LR 5 Exch 92; 39 LJ Ex 41, 21 LT 830 applied.

Ratcliffe v Evans [1892] 2 QB 524; LJQB 535; 66 LT 794, CA.

Stroms Bruks Akt Bolag v Hutchison [1905] AC 515; 74 LJPC 130; 93 LT 562, HL (E).

Action

Peter Mark Gershom Ouma instituted proceedings (Civil Case No 2149 of 1974) against the Nairobi City Council in which he claimed damages for wrongful eviction from property and for consequential loss and damage to his possessions. The Council counterclaimed for payment of the outstanding balance of the purchase price of the property. The facts are set out in the judgment.

The plaintiff in person.

CC Agutu for the Council.

Cur adv vult.

Hilton WN Osinya v Kenya Commercial Bank Ltd

High Court, Nairobi 22nd October; 17th November 1976

Muli J

Negligence – duty of care – to whom duty owed – parties in special relationship – customer of one bank claiming damages for dishonour by second bank of cheque payable to him.

The plaintiff received a cheque which he passed to his bank for special clearance. Before the cheque had been cleared, and on the strength of it, the plaintiff drew a cheque on his own bank. The bank presented the original cheque to the defendant - the bank on which it had been drawn - but the defendant returned the cheque with a query relating to its signature. In consequence, the cheque drawn by the plaintiff was dishonoured by his bank. The plaintiff sued the defendant for the embarrassment and humiliation suffered by him as a result of its negligence in refusing to accept the original cheque for payment.

Held:

That as there was no contractual relationship between the defendant and the plaintiff, any liability for the damage caused to the plaintiff could be founded, if at all, in tort; although a special relationship between the parties, irrespective of contractual obligations, could give rise to a duty of care, there was no evidence in the present case to show that any such relationship between the plaintiff and the defendant had been created and, accordingly, the plaintiff’s claim must fail.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, HL, and

Winther v Arbon Langwish & Southern Ltd [1966] EA 292 applied.

Cases referred to in judgment:

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, [1963] 3 WLR 101, [1963] 2 All ER 575, HL (E).

Winther (Marianne Ingrid) v Arbon Langwish & Southern Ltd [1966] EA 292.

Action

Hilton WN Osinya instituted proceedings (Civil Case 2057 of 1975) in which he claimed damages from the Kenya Commercial Bank Ltd for embarrassment and humiliation. The facts are stated in the judgment.

JV Juma (instructed by Archer & Wilcock) for the Plaintiff.

P Le Pelley (instructed by Hamilton Harrison & Mathews) for the Defendant.

Cur adv vult

Sampson Wandera & another v Attorney-General

High Court, Nairobi 8th, 9th, 10th November 1976

Hancox J

Registered land - claim made against proprietor - claim barred by statute - statute only effective to bar claim made after registration – Registered Land Act (cap 300), section 28.

Section 28 of the Registered Land Act which prevents claims in trespass, negligence or other wilful acts being brought against the registered proprietor of land, cannot defeat a claim in tort allegedly committed before the proprietor became registered.

Obiero v Opiyo [1972] EA 227 considered.

Cases referred to in judgment:

Obiero v Opiyo [1972] EA 227.

Thompson v Ward [1953] 2 QB 153, [1953] 2 WLR 1042, [1953] 1 All ER 1169, CA.

Preliminary issue

Sampson Wandera and Peter Okunjo Wandera instituted proceedings against the Attorney-General (Civil Case 1725 of 1972) representing the Government of Kenya for acts of trespass in respect of which the governement was said to be vicariously liable. The land in respect of which the acts of trespass were alleged to have occured was, at a later date, registered in the name of the government. The Attorney-General pleaded that no claim in trespass could lie against tthe government as registered proprietor of the land by virtue of section 28 of the Registered Land Act. The court considered this plea as a preliminary issue.

SM Kivuitu (instructed by Kivuitu & Co ) for the Plaintiffs.

S Odingo for the Attorney General.

Cur adv vult

Gulf Engineering (East Africa) Ltd v Amrik Singh Kalsi

High Court, Nairobi 26th October, 10th November 1976

Todd J

Company law – legal proceedings – proceedings instituted by limited company – jurisdiction to order plaintiff to provide security for defendants’ costs – discretionary power – plaintiff company unable to afford to pay defendant’s costs – Companies Act (cap 486), section 401.

The plaintiff company instituted proceedings against the defendants. The first defendant feared that, if he should be successful, the plaintiff company might be unable to pay his costs and hence applied for security for his costs under section 401 of the Companies Act. After the application was filed, a debenture-holder appointed a receiver to manage the plaintiff company’s affairs. The receiver later stated that the company would not have sufficient funds to pay the unsecured creditors.

Held:

That section 401 of the Companies Act gave the Court a wide discretion whether or not to order security for costs in any case and, the Court being satisfied that the plaintiff company’s claim was bona fide and had a reasonable prospect of success, it would not order the company to provide security for costs even though it would be unlikely to be able to afford the first defendant’s costs should he be successful.

Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] 2 WLR 632, CA, applied.

Cases referred to in judgment:

Cowell v Taylor (1885) 31 Ch D 34; 55 LJ Ch 92; 53 LT 483, CA.

Dartmouth Harbour Commissioners v Mayor of Dartmouth (1886) 55 LJQB 488.

Parkinson (Sir Lindsay) & Co Ltd v Triplan Ltd [1973] QB 609; [1973] 2 WLR 632, [1973] 2 All ER 273, CA.

Universal Aircraft Ltd v Hickey (1943) unreported, 4th May, Morton J.

Summons

Amrik Singh Kalsi (trading as Systems Design), the first defendant, who  (together with Muter & Oswald (Kenya) Ltd) had been sued by Gulf Engineering (East Africa) Ltd (Civil Case No 2558 of 1975), applied to the Court for security for his costs. The facts are set out in the judgment.

GS Pall for the 1st Defendant.

L Vadgama for the Plaintiff Company.

Cur adv vult.

Mackenzie (Kenya) Ltd v Pharmico Ltd

High Court, Nairobi 6th, 22nd October, 9th November 1976

Simpson J

Civil procedure - nature of proceedings – final or interlocutory – proceedings under Civil Procedure Rules, order XXI, rule 57.

Company law – charge on company property – registration – certificate of registration – conclusive nature of certificate – Companies Act (cap 486), section 99.

Company law – charge on company property – floating charge – enforcement – property subject to attachment for judgment debt before floating charge crystallizes – control over property – whether judgment debtor or debenture-holder entitled to property – Civil Procedure Act (cap 21), section 45.

Proceedings under the Civil Procedure Rules, order XXI, rule 57, are not interlocutory proceedings as they determine the rights of the parties to the property which is the subject matter of the proceedings.

In April 1975 the defendant company issued a debenture to the bank to secure credit facilities and financial accommodation. The debenture gave the bank a floating charge over the defendant company’s moveable assets.

The debenture was registered in June 1975 and a certificate of registration was issued, even though the debenture had been submitted for registration out of time. The certificate indicated the date on which it had been issued. Later, the plaintiff obtained judgment against the defendant company for Shs 224,111. The plaintiff obtained warrants of attachment and sale of the judgment debtor’s goods at its business premises. In March 1976 the court broker levied attachment and placed locks on the door of the judgment debtor’s shop premises. The value of the property attached was approximately Shs 150,000. In April, the bank appointed a receiver under a power contained in the debenture and he also placed a lock on the door of the shop premises. The bank also filed an objection to the attachment and the decree-holder thereupon intimated that he intended to proceed with the attachment. On the question whether the objector or the decreeholder was entitled to the goods,

Held:

(1) That the debenture was effective as the certificate of registration was, by virtue of section 99 of the Companies Act, conclusive that the requirements as to registration had been complied with, even though the debenture should not have been registered and that fact was apparent on its face.

National Provincial and Union Bank of England v Charnley (1924) 1 KB 431, CA, applied.

(2) That the court broker had effective control over the goods in the shop premises as, notwithstanding section 45 of the Civil Procedure Act, there was nothing to prevent him from breaking into those premises; however, the appointment of the receiver crystallised the floating charge over the company’s goods, except where these had been sold before his appointment, and although the goods were under the control of the court broker they remained subject to the objector’s floating charge; and, accordingly, the decree-holder was not entitled to proceed with the attachment.

Cases referred to in judgment.

Evans v Rival Granite Quarries Ltd [1910] 2 KB 979; 79 LJK 970, CA.

Heaton & Dugard Ltd v Cuttine Bros Ltd [1925] 1 KB 655; 94 LJKB 673; 133 LT 41, DC.

National Provincial and Union Bank of England v Charnley [1924] 1 KB 431; 93 LJKB 241; 130 LT 465, CA.

Nye (CL) Ltd, Re (1971) Ch 457; [1970] 3 WLR 158; [1970] 3 All ER 1061, CA.

Robinson v Burnell’s Vienna Bakery Co Ltd [1904] 2 KB 624; 73 LJKB 911; 91 LT 375.

Summons

The decree-holder, Mackenzie (Kenya) Ltd, had obtained judgment in its action (civil case 2688 of 1975) against the judgment debtor, Pharmico Ltd. The decree-holder obtained warrants of attachment and sale against the judgment debtor’s property at Latema Road, Nairobi. The objector, Habib Bank Ltd, filed a notice of objection to the attachment under the Civil Procedure Rules, order XXI, rule 53. The decree-holder intimated, under rule 56, that he intended to proceed with the attachment whereupon the objector filed the summons under rule 57 to establish its claim. The facts are set out in the judgment.

DN Khanna and Rommel da Gama Rose (instructed by Francis da Gama Rose & Co) for the Objector.

KA Fraser (instructed by Hamilton Harrison & Mathews) for the Decreeholder.

Cur adv vult.

Gatimu Kinguru v Muya Gathangi

High Court, Nairobi 14th, 15th February, 10th, 11th July 1974;

Madan J 10th, 14th, 18th, 30th June, 12th July;

4th October, 5th November 1976

Limitation of actions - action to recover land – action barred after twelve years – title to land extinguished – agricultural land in land control area - failure to obtain consent to transaction – whether failure to obtain consent vitiates title acquired by adverse possession - whether title requires register to be rectified - Land Control Act (cap 302), section 6(1)(a) – Limitation of Actions Act (cap 22), section 7

Trust - Trust property – land – acquisition of agricultural land in land control area – land impressed with trust - no consent to trust by land control board -meaning of “other disposal of or dealing’’ - no reference to trust in instrument of acquisition – whether trust enforceable – Land Control Act (cap 302), section 6(1)(a) – Registered Land Act (cap 300), section 126(1)

Section 6(1) of the Land Control Act provides: “Each of the following transactions, that is to say: (a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area . . . is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of the transaction in accordance with this Act.

Section 126(1) of the Registered Land Act provides: “A person acquiring land, a lease or charge in fiduciary capacity may be described by that capacity in the instrument of acquisition and, if so described, shall be registered with the addition of the word trustee’, but the Registrar shall not enter particulars of any trust in the register”.

The consent of the local land control board is not required under section 6(1)(a) of the Land Control Act to a change in the ownership of agricultural land situated within a land control area which occurs by adverse possession in accordance with section 7 of the Limitation of Actions Act. Further, a title acquired by adverse possession creates a change in ownership of the title which does not require reallocation of the register.

The creation of a trust over agricultural land in a land control area does not constitute an “other disposal of or dealing’’ for the purposes of section 6(1)(a) of the Land Control Act and, therefore, does not require the consent of the local land control board; and the absence of any reference to the trust in the instrument of acquisition of the land does not affect the enforceability of the trust as the provisions of section 126(1) of the Registered Land Act as to the reference to the capacity as trustee in the instrument of acquisition are not mandatory but merely permissive.

Mwangi Muguthu v Maina Muguthu (unreported) followed

Githuchi Farmers Ltd v Gichamba [1973] EA 8 not followed

Cases referred to in judgment:

Guthuchi Farmers Co Ltd v Gichamba [1973] EA 8.

Hosea v Njiru [1974] EA 526.

Mbugua Karanja v Kamara Muhia (unreported) Civil Case No 409 of 1975, HC.

Mwangi Muguthu v Maina Muguthu (unreported) Civil Case No 377 of 1968, HC.

Action

Gatimu Kinguru, the registered proprietor of a parcel of land known as Githunguri/Ikinu 58, instituted proceedings in the High Court (Civil Case No 176 of 1973) against Muya Gathangi alleging trespass by Muya Gathangi and claiming an order for possession of the land, a perpetual injunction restraining further trespass, damages and costs. In a counterclaim, the defendant sought, inter alia, a declaration that, he was the owner of half the parcel of land and an order for rectification of the register to include his name as owner of half of the parcel of land. The facts are set out in the judgment.

P Gichukie and PM Gatheru (instructed by Njuki & Gichukie) for the Plaintiff.

PM Wamae (instructed by Munoru & Co) for the Defendant.

Cur adv vult

Felix Kiarie Margaret & another v Republic

High Court, Appellate Side, Nairobi 5th November 1976

Trevelyan & Sachdeva JJ

Criminal law - evidence - corroboration - sexual offence – corroboration by co-complainant in respect of charges in which she was not named

Criminal law - evidence, corroboration - sexual offence - conviction in absence of corroboration - when it may be appropriate so to convict

Cases referred to in judgment:

Chila v The Republic [1967] EA 722, EACA. Director of Public Prosecution v Kilbourne [1973] AC 729; [1973] 2 WLR 254, [1973] 1 All ER 440, HL.

Njuguna s/o Wangurimu v R (1953) 20 EACA 196

R v Campbell [1956] 2 QB 432, [1956] 3 WLR 219; [1956] All ER 272; 40 Cr App Rep 95, CCA.

R v Crocker (1922) 17 Cr App Rep 46; 92 LJKB 428; 128 LT 33, CCA.

Appeal

Felix Kiarie Margaret and Edward Mbithi Kang’ethe both appealed to the High Court, appellate side (Criminal Appeal Nos 565 and 578 of 1976) against their convictions in the Resident Magistrate’s Court (EO O’Kubasu Esq) in Criminal Case No 80 of 1976 on charges of rape. The Court allowed the appeals and the case is noted only in relation to directions given by the Court in relation to the corroboration of evidence on charges of sexual offences.

Amos Wainaina v Belinda Murai & 9 others

High Court, Nairobi 1st, 4th, 5th, 6th, 25th October 1976

Simpson J

Limitation of actions - action to recover land - action barred after twelve years – entitlement to acquisition of title by adverse possession - entitlement of “muhoi’’ to claim title – meaning of “muhoi”

Land – nature of interest in – licence or tenancy at will – presumption arising from exclusive occupation.

A “muhoi’’ is a person, usually a poor person, with no land of his own under Kikuyu customs is permitted to occupy and cultivate land temporarily and who could never acquire ownership. The fact that a person is a muhoi does not prevent him from acquiring registered land by adverse possession under the Limitation of Actions Act. Once a plaintiff has established exclusive occupation of property, a tenancy at will is presumed in his favour unless there are circumstances negativing such presumption.

Heslop v Burns [1974] 1 WLR 1241, CA, applied.

Cases referred to in judgment:

Cobb v Lane (1952) WN 196, [1952] 1 All ER 1199, CA.

Doe d Groves v Groves (1848) 10 QB 486, 116 ER 185.

Heslop v Burns [1974] 1 WLR 1241, [1974] 3 All ER 406, CA.

Kimani v Gikanga (1965) EA 735.

Lynes v Snaith (1899) 1 QB 486.

Originating summons

The plaintiff, Amos Wainaina, applied to the Court (Civil Case No 811 of 1975) for a declaration of entitlement by adverse possession to certain land registered in the name of Ignatius Murai (deceased) as sole proprietor. The defendants to the summons were the deceased’s widow (Belinda Murai), Claudius Murai, Fredrick Kairu, Theresius Mucheru and the following sons of the deceased: Thomas Kimangu, Thomas Gakirio, Richard Roita, James Mwangi, Patrick Mucheru and Stephen Kienjeru. The facts are set out in the judgment.

RK Mitra (instructed by JK Winayak & Co) for the Plaintiff

RO Kwach (instructed by Hamilton Harrison & Mathews) for the Defendants

Cur adv vult.