Highways Ltd v Savannah Travel & Tours Ltd

High Court, Mombasa 27th October 1977

Sheridan J

Bailment - sub-bailment - responsibility for bailed goods - bailee hiring car to sub-bailee - loss of car - bailors’s claim against original bailee.

The defendant, a car hire company, hired a car from another car hire company, the plaintiff to hire to O. Subsequently, O disappeared and the car was not recovered. The plaintiff sued the defendant for the value of the car, arrears of payment of the hire charges and damages for wrongful detention.

Held:

That by sub hiring the car to O the defendant had made O its agent and it was liable for his tortuous conversion of the car; moreover, the defendant did not absolve itself from its liability to the plaintiff to take reasonable care of the car by delegating that duty to O.

Dictum of Sachs L J in British Road Services Ltd v Arthur V Crutchley & Co Ltd (Factory Guards Ltd, third parties) [1968] 1 All ER 811, 824, applied.

Cases referred to in judgment:

British Road Services Ltd v Arthur V Crutchley & Co Ltd (Factory Guards Ltd, third parties) [1968] All ER 811, [1968] 1 Lloyd’s Rep 271, CA.

Estate Services Ltd v Naumann Gepp (East Africa) Ltd (unreported), Civil Case No 317 of 1975 (Mombasa), Simpson J.

Action

Highways Ltd sued Savannah Travel & Tours Ltd (Civil Case No 9 of 1975 (Mombasa )) for the delivery up of a car, or its value, arrears of hire payments and damages for wrongful detention. The defendant instituted third party-proceedings against Bruce Travel Ltd. The facts are set out in the judgment.

KM Pandya for the Plaintiff.

AD Suchak for the Defendant.

Thuo v The Attorney-General

High Court, Mombasa 21st April 1977

Sheridan J

Limitation of actions – accrual of cause of action – tort – conversion – goods seized by public authority under statutory power – subsequent refusal to return goods – whether cause of action accrued on seizure or on refusal to return.

Where a plaintiff alleges that goods belonging to him have been unlawfully seized under the Imports, Exports and Essential Supplies Act and a demand for their return is refused, his cause of action accrues at the date of seizure not at the date of the subsequent refusal to return the goods; and the position is not affected by abortive proceedings brought by the State under sections 15, 17 and 18 of the Act.

Cullen (Charles Douglas) v Parshan and Hansraj [1962] EA 159, EACA, applied.

Case referred to in judgment:

Cullen (Charles Douglas) v Parshan and Hansraj [1962] EA 159, EACA.

Action

Jacob Luke Thuo filed a plaint on 29th June 1976 (Civil Case 361 of 1976) in which he claimed payment form the Attorney-General for 3150 bags of sugar which were seized by officials of the Ministry of Commerce and Industry from a warehouse in Mombasa over the weekend of 22nd to 25^th November 1974. The facts are set out in the judgment.

C Salter QC for the plaintiff.

KC Gautama for the Attorney-General.

Lummus & Co Ltd v EA Harbours Corporation

High Court, Mombasa 23rd, 24th, 31st March 1977

Sheridan J

Contract – terms of contract – exclusion of liability – bill of lading – clause conferring exemption from liability on carrier – exemption extended by clause to independent contractors employed by carrier – whether clause protects stevedore.

Cases referred to in judgment:

Coffee Marketing Board v Harbours Corporation [1973] EA 126, EACA.

Halal Shipping Co Ltd v Securities Bremer Allegemene [1965] EA 690, EACA

Kayanja v New India Assurance Co Ltd [1968] EA 295, EACA.

New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975], AC 154, [1974] 2 WLR 865, [1974] 1 All ER 1015, PC.

Action

The Lummus Co Ltd instituted proceedings (Civil Case No 289 of 1974) against the East African Harbours Corporation for damages for negligence or breach of duty. The case is reported only in relation to the plea by the defendant that it was entitled to the benefit of an exemption clause in the bill of lading to which it was not a party.

PJ Wilkinson QC and IT Inamdar (instructed by Messrs Bryson, Inamdar and Bowyer) for the Plaintiff.

DMK Bishota and CN Ngalo (instructed by Counsel to the East African Community) for the Defendant.

Cur adv vult.

Melas v New Carlton Hotel Ltd

High Court, Mombasa 11th, 25th, 28th February;

Sheridan J 9th, 18th March 1977

Landlord and tenant – controlled tenancy – duration – not exceeding five years – tenancy agreement executed after commencement of term – when period begins to run – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2(1)(b).

Landlord and tenant – controlled tenancy – provision for termination – contractual right to serve notice on expiration of five years – whether provision for termination within five years – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2(1)(b).

Section 2(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides that a controlled tenancy must be a tenancy that has been reduced into writing and “(i) is for a period not exceeding five years; or (ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof”.

Where the tenancy agreement expressly states the date from which the tenancy is to run, the period of the tenancy is to be calculated for the purposes of section 2(1)(b)(i) from that date even if the agreement is executed at a later date.

Bird v Baker (1858) 1 E&E 12 applied.

Earl of Cadogan v Guinness [1936] Ch 515 and Roberts v Church Commissioners for England [1972] 1 QB 278, CA, distinguished.

A right to serve notice to determine the term of a tenancy on the expiration of five years does not bring the tenancy within the terms of section 2(1)(b)(ii).

Rex Hotels Ltd v Jubilee Insurance Co Ltd [1972] EA 211, EACA, considered.

Cases referred to in judgment:

Abdulali Jiwaji & Co v Shamui Holdings Ltd, (Civil Case, Mombasa registry, No 264 of 1976).

Bird v Baker (1858) 1 E&E 12; 28 LJQB 7; 32 LTOS 74; 120 ER 812.

Cadogan (Earl) v Guiness [1936] Ch 515; [1936] 2 All ER 29.

Cow v Casey [1949] 1 KB 474; [1949] 1 All ER 197, CA.

Rex Hotels Ltd v Jubilee Insurance Co Ltd [1972] EA 211, EACA

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

Motion

Mary Panos Melas and Angelline Lilly Monnas  applied to the Court for summary judgment in Civil Case No 742 of 1976 for possession of the suit premises against the New Carlton Hotel Ltd. The facts are set out in the judgment.

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

Mansur Satchu (instructed by Messrs Atkinson, Cleasby & Satchu) for the Defendant.

Cur adv vult.

Lougher v Kenya Safari Lodges & Hotels Ltd

High Court, Mombasa 17th March 1977

Sheridan J

Occupier’s liability – duty of care to visitors – restriction of duty by agreement – notice in hotel disclaiming liability for injury in or near swimming pool – plaintiff injured by fall outside changing room – plaintiff aware of hazards in changing rooms – whether contributory negligence – whether disclaimer effective.

A hotel owned by the defendant had a swimming pool with a changing room and toilets. In the vicinity of the pool a large notice was fixed to the wall stating that the defendant would not be liable for any injury arising out of the use of the pool or which was sustained in or near it. The floor space in most areas around the pool had been treated with a non-slip substance but the area outside the changing room had not been so treated; on occasions this area was used to clean sun-oil off mattresses for wheeled beds. In 1975 the plaintiff came to stay at the hotel. He decided to use the pool and first visited the toilet in the changing room. He was bare-footed at the time. As he came out of the changing room he slipped on the floor outside where there was a pool of water. Although as an athlete the plaintiff was familiar with the usual hazards of changing rooms he did not anticipate this particular hazard. He suffered injury and sued the defendant for damages.

Held:

(1) That the defendant should have taken precautions against the probable wetness of the floor due to bare-footed swimmers walking on it and the mere fact that the plaintiff may have been aware that there might be hazards in using a changing room did not, in the absence of foolishness or recklessness on his part, constitute contributory negligence.

Appleton v Cunard Steamship Co Ltd [1969] 1 Lloyd’s Rep 150 applied.

Jennings v Cole [1949] 2 All ER 191, Bell v Travco Hotels Ltd [1953] 1 All ER 638, CA,

Thomas v Bristol Aeroplane Co Ltd [1954] 2 All ER, 1, CA, and Lowther v H Hogarth & Sons Ltd [1959] 1 Lloyd’s Rep 171 distinguished.

(2) That the notice restricting the defendant’s liability could only be effective in respect of guests at the hotel if it were brought to their attention before the contract between them and the hotel was effected, eg by its display at the reception desk; accordingly, the notice did not exclude the defendant’s liability for the injury sustained by the plaintiff and the plaintiff’s claim for damages succeeded.

Olley v Marlborough Court Ltd [1949] 1 KB 532, CA, and Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, CA, applied.

Cases referred to in judgment:

Appleton v Cunard Steamship Co Ltd [1969] 1 Lloyd’s Rep 150.

Bell v Travco Hotels Ltd [1953] 1 QB 473; [1953] 2 WLR 556; [1953] 1 All ER 638, CA.

Jennings v Cole [1949] 2 All ER 191.

Lowther v H Hogarth & Sons Ltd [1959] 1 Lloyd’s Rep 171.

Maclenan v Segar [1917] 2 KB 325;86 LJKB 1113; 117 LT 376.

Thomas v Bristol Aeroplane Co Ltd [1954] 2 All ER 1; 52 LGR 292, CA.

Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163; [1971] 2 WLR 585; [1971] 1 All ER 686, CA.

Turner v Arding & Hobbs Ltd [1949] 2 All ER 911.

Olley v Malborough Court Ltd [1949] 1 KB 432.

Action

W Layton P Lougher instituted proceedings (Civil Case No 379 of 1976) against Kenya Safari Lodges & Hotels Ltd, the owner of the Mombasa Beach Hotel, for injuries sustained by him on the hotel premises when he was staying as a guest at the hotel. The facts are described in the judgment.

MAC Satchu for the Plaintiff.

SK Guram for the Defendant.