Kisima Farm Ltd v Commissioner of Lands

High Court, Nairobi 28th February, 2nd March 1978

Hancox J

Miscellaneous Civil  Case No 62 of 1978

Judicial review - prohibition - availability of order - tribunal under duty to act judicially - Commissioner of Lands - inquiry in to claims for  compensation for compulsory acquisition of land – Land Acquisition Act (cap 295), section 9.

Judicial review - prohibition - availability of order - right of appeal from decision of tribunal - whether right of appeal precludes order of prohibition.

The Commissioner of Lands in determining claims to compensation under section 9 of the Land Acquisition Act is under a duty to act judicially and, accordingly, an order of prohibition may be made (in appropriate circumstances) to restrain him from continuing the holding of the inquiry into compensation.

R v Local Government Board (1882) 10 QBD 309, CA, applied.

The existence of a right of appeal from the decision of the Commissioner of Lands does not preclude the grant of an order of prohibition.

Turner v Kingsbury Colleries Ltd [1921] 3 KB 169 and R v North, ex parte Oakey [1927] 1 KB 491, CA, applied.

Cases referred to in judgment:

1. R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, [1967] 3 WLR 348, [1967] 2 All ER 770.
2. R v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171, [1923] All ER Rep 150, 93  LJKB 390, 130 LT 164, CA.

3. R v Local Government Board (1882) 10 QBD 309, 52 LJMC 4, 48 LT  173, CA.

4. R v North, ex parte Oakey [1927] 1 KB 491,96 LJKB 77, 136 LT 387,  CA.

5. Ridge v Baldwin [1964] AC 40, [1963] 2 WLR 935, [1963] 2 All ER 66,  HL.

6. Turner v Kingsbury Colleries Ltd [1921] 3 KB 169, 90 LJKB 1132, 125

Application

Kisima Farm Ltd applied ex parte to the High Court (Miscellaneous Civil  Case No 62 of 1978) for leave to issue an order of prohibition to restrain the Commissioner of Lands from continuing with an inquiry into claims for compensation under the Land Acquisition Act. The facts are set out in the judgment of Hancox J.

JA Couldrey (instructed by Kaplan & Stratton) for the Applicant company.

Nyamonde v Republic

Court of Appeal, at Nairobi December 19, 1978

Madan, Law JJA & Miller Ag JA

Criminal Appeal No 34 of 1978

Evidence - sufficiency of fingerprint evidence to link an accused to an offence - sufficiency of fingerprint evidence alone as a basis for conviction.

The appeal seeks to overturn the conviction of the accused and by a magistrate’s court which was upheld by the High Court. The accused had been charged with the offence of shop breaking and stealing contrary to Section 306 (a) of the Penal Code. It was alleged that the accused had broken into a shop and stolen some goods but in the process left his fingerprints on the cabinet of drawers. Expert evidence was called that showed that the accused’s left thumb print matched that collected from the cabinet. His conviction was based on this evidence. The accused seeks to impeach his conviction on the basis that this evidence alone without more is not enough to sustain a conviction.

At the court of appeal, the accused admits that the finger print was his but explains that its presence on the cabinet in the shop was because he used to visit the shop as a taxi - driver to collect passengers.

Held :

1. That the court has an overriding discretion to exclude evidence of identification by fingerprints especially where it has been obtained oppressively.

2. That in the absence of duress, identification of fingerprints by an expert may be sufficient as a basis for conviction even if it is the only evidence.

3. That in the present case nothing on the record on the second appeal shows that the lower courts erred in law in convicting the appellant and that any reasonable court directing itself properly would arrive at the same conclusion.

Appeal dismissed.

Cases

1. Nazir Ahmed v Republic EA 345

Statutes

No statutes referred to.

Davis & Shirtliff Ltd v Attorney-General

Court of Appeal, Nairobi 11th, 14th December 1978

Madan, Law JJ A & Miller Ag JA

Civil Appeal 21 of 1978

Execution – completion of execution - receipt of proceeds of sale by court broker – failure to account for proceeds to judgment creditor – court broker agent of court - Government Proceedings Act (cap 40), section 4(5).

Although the process of execution is complete when the court broker receives the proceeds of sales of the attached property, all acts performed by him in connection with the execution of judicial process before he actually pays over the proceeds to the judgment creditor are acts in discharge of his responsibilities; accordingly, section 4(5) of the Government Proceedings Act precludes proceedings against the Government in respect of all such acts.

A court broker is an agent of the court and since the Court is a “person” for the purpose of section 4(5), no action lies against the Government for anything done or omitted to be done in the course of the execution of judicial process.

Case referred to in judgment:

Overseas Aviation Engineering (GB) Ltd, Re [1963] Ch 24, [1962] 2 WLR 594, [1962] 3 All ER 12, CA.

Appeal

Davis & Shirtliff Ltd appealed to the Court of Appeal (Civil Appeal 21 of 1978) from a decision of Simpson J in the High Court on 7th February 1978 in Civil Case 2603 of 1977 striking out the appellant’s plaint as disclosing no reasonable cause of action. The facts are set out in the judgment of Madan JA.

JA Couldrey (instructed by Kaplan & Stratton) for the Appellant.

JF Shields and Mrs Valine Onyango for the Attorney General.

Cur adv vult.

Auto Engineering Ltd v M Gonella & Co Ltd

High Court, Nairobi 22nd September, 30th October11th, 13th, 30th November 1978

Hancox & Sachdeva JJ

Civil Appeal Nos 70 of 1976 and 51of 1977

Landlord and tenant – notice to quit – landlord giving notice – notice given by landlord’s advocates – whether given by landlord – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2.

Landlord and tenant – notice to quit – form of notice – language differing from statutory wording – adequacy of language – no misdescription of tenant’s rights.

Landlord and tenant - controlled tenancy – right to terminate – intention to construct or reconstruct – not sole intention – effect of need for planning permission on intention – Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act (cap 301), section 7(1)(f).

Landlord and tenant – controlled tenancy – right to terminate – intention of landlord to occupy premises – occupier to be company controlled by landlord – company not yet formed.

Landlord and tenant – controlled tenancy – right to terminate – burden of proof on landlord – proof of intention – burden comparable to burden on landlord in England opposing grant of new tenancy.

Notwithstanding the strict definition of “landlord” in section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, a notice to quit (or a tenancy notice) under the Act is not invalidated merely because it has been given by the landlord’s advocates rather than by himself.

Harmond Properties v Gajdzis [1968] 1 WLR 1858, CA, applied.

Provided that the words of a notice to quit do not purport to curtail any of the tenant’s rights, they do not necessarily need to repeat the words of the statute; but the language used must be adequate to convey to the receiving party what the landlord intends to do and why he wants vacant possession.

Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, HL and Lall v Jepee Investments [1972] EA 512 distinguished.

A notice to quit, which purports to be based on the landlord’s intention to construct or reconstruct the premises in accordance with section 7(1)(f) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, is not invalidated by the landlord’s failure to show that the intention to construct or reconstruct is his only intention, and the need for planning permission is not an insurmountable obstacle to establishing the landlord’s intention.

Fisher v Taylors Furnishing Stores Ltd [1956] 2 All ER 78, CA, explained. A notice to quit may properly be given even though it is intended that the premises which are the subject of the notice are to be occupied by a company not yet formed which will be under control of the landlord. Fleet Electrics Ltd v Jacey Investments Ltd [1956] 3 All ER 99, CA, applied.

There is no distinction, so far as the burden of proof is concerned, between a landlord serving a notice to quit under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and a landlord in England opposing the grant of a new tenancy under the English Landlord and Tenant Act 1954; in each instance the burden of proof is placed on the landlord to establish his intention.

Cases referred to in judgment:

1. Abeid v Badbes [1968] EA 598.
2. Balbir v Panesar [1972] EA 94.
3. Betty’s Cafes Ltd v Phillips Furnishing Stores Ltd [1958] 2 WLR 513, [1958] 1 All ER 607, HL.
4. Bewlay (Tobacconists) Ltd v British Bata Shoe Co Ltd [1959] 1 WLR 45, [1958] 3 All ER 652, CA.
5. Cunliffe v Goodman [1950] 2 KB 237, [1950] 1 All ER 720, CA.
6. Fisher v Taylors Furnishing Stores Ltd [1956] 2 QB 78, [1956] 2 WLR 985, [1956] 2 All ER 78, CA.
7. Fleet Electrics Ltd v Jacey Investments Ltd [1956] 1 WLR 1027, [1956] 3 All ER 99, CA.
8. Gregson v Cyril Lord Ltd [1963] 1 WLR 41, [1962] 3 All ER 1007, CA.
9. Harmond Properties Ltd v Gajdzis [1968] 1 WLR 1858, [1968] 3 All ER 263, CA.
10. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, [1970] 3 WLR 287, [1970] 2 All ER 871, HL.
11. Kangari v Station Makutano Bar and Restaurant High Court Civil Appeal Nos 20 to 22 of 1975, Platt J.
12. Karatina Garments Ltd v Nyanarua [1976] Kenya LR 94.
13. Lall v Jeypee Investments Ltd [1972] EA 512.
14. London County Council v Farren [1956] 1 WLR 1297, [1956] 3 All ER 401, CA.
15. London County Council v Vitamins Ltd [1955] 2 QB 218, [1955] 2 WLR 925, [1955] 2 All ER 229, CA.
16. Portal Motors Ltd v HFCK High Court Civil Appeals No 81 to 86 of 1975, Madan J.
17. Price v West London Investment Building Society [1964] 1 WLR 616, [1964] 2 All ER 318, CA.
18. Waljee v Rose [1976] Kenya LR 25, EACA.

Appeal

The two appeals by Auto Engineering Ltd (the tenant) to the High Court (Civil Appeal Nos 70 of 1976 and 51of 1977) from a decision of the Business Premises Rent Tribunal, Nairobi, on 13th April 1977 (Tribunal Case No 361 of 1975) were consolidated and heard together. The respondent to the appeals was M Gonella & Co Ltd (the landlord). The facts are set out in the judgment of the court.

AAK Esmail (instructed by Esmail & Esmail) for the Tenant.

SC Gautama and Miss HN Kara (instructed by Waruhiu & Muite) for the Appellant.

Cur adv vult.

Devshi Dhanji and 2 others v Kanji Naran Patel and 2 others

Court of Appeal, Nairobi 10th, 24th November 1978

Wambuzi, Law JJ A & Miller Ag JA

Civil Appeal No 14 of 1978

Costs – taxation – reference to judge – upsetting decision of taxing officer – when appropriate for judge to finalise taxation.

Costs – taxation – reference to judge – upsetting decision of taxing officer – restitution – whether interest should be ordered on refunded costs – costs paid into advocates’ trust account – no interest or benefit received – Civil Procedure Act (cap 21), section 91(1).

When it is apparent that the parties to litigation are prepared to dispute every point, however unmeritorious or trivial, a judge on a reference from a taxing officer may properly decide to finalise the taxation himself, even though one of the parties requests a reference back to another taxing officer.

Section 91(1) of the Civil Procedure Act provides: “Where and in so far as a decree is varied or reversed, the Court of first instance shall … cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the Court may make any orders, including orders for the refund of costs and for the payment of interest … which are properly consequential on such variation or reversal”.

On a reference from a taxing officer, a judge reduced a party’s taxed costs but, pending an appeal, refused to order the reduction in the costs to be paid out of that party’s advocates’ trust account. On appeal from that order,

Held:

Allowing the appeal, that the judge should not have refused to make the order; but as the sum held in the trust account had not earned any interest and that party had not had the use of the money, no order for the payment of interest on the amount by which the costs had been reduced should be made, notwithstanding the provisions of section 91(1) of the Civil Procedure Act.

Harnam Singh s/o Jhanda Singh v Jamal Pirbhai (1956) 23 EACA 226 applied.

Cases referred to in judgment:

1. D’Souza SR v CC Farrao [1960] EA 602, EACA.
2. Harnam Singh s/o Jhanda Singh v Jamal Pirbhai (1956) 23 EACA 226
3. Patel v Dhanji [1975] EA 301, EACA.
4. Steel Construction v Uganda Sugar Factory Ltd [1970] EA 141.

Appeal

The defendants, Devshi Dhanji, Dhanji Ramji and Shivji Naran (the president, secretary and treasurer, respectively, of Shree Cutchi Leva Patel Samaj) appealed to the Court of Appeal (Civil Appeal No 14 of 1978) from a decision of Platt J on 29th March 1977 (in Civil Case No 1371 of 1972) on a reference from a taxing officer in a suit brought against them by the plaintiffs, Kanji Naran Patel, Kanji Ramji Patel and Khimji Vasta Patel. The facts are set out in the judgment of Law JA.

PN Khanna for the Plaintiffs.

AA Lakha and BJ Sarvaiya for the Defendants.

Cur adv vult.

East African Power and Lighting Co Ltd v Attorney General

Court of Appeal, Nairobi 16th, 17th October, 22nd November 1978

Sir James Wicks CJ, Wambuzi & Law JJ A

Civil Appeal No 18 of 1978

Landlord and tenant – agreement for lease – entry into possession following agreement - nature of tenancy following entry and payment of rent – monthly tenancy or tenancy at will – essential elements of lease not agreed – Transfer of Property Act (India), section 106.

Where a prospective tenant is permitted to occupy premises in anticipation of the execution of a formal lease (but all the essential elements of the lease have not been agreed) and rent is paid and accepted, in the absence of a contract or local law or usage to the contrary the letting is governed by section 106 of the Transfer of Property Act (India) and is a monthly tenancy which can only be terminated by the giving of the requisite notice.

Rogan-Kamper v Lord Grosvenor (No 2) [1977] Kenya LR 123 applied.

East African Power and Lighting Co Ltd v The Attorney General [1977] Kenya LR 206 reversed.

Per curiam. A tenancy at will can only exist in Kenya as a result of an express agreement to create such a tenancy.

Cases referred to in judgment:

1. Bepari (AA ) v JLR Chaudri [1939] 2 Cal 254.
2. Birsingh v Ketra [1967] EA 741, High Court of Tanzania.
3. Rogan-Kamper v Lord Grosvenor (No 2) [1977] Kenya LR 123, EACA.
4. Singh v Singh [ 1961] IR Patna 350.

Appeal

The East African Power and Lighting Co Ltd appealed to the Court of Appeal (Civil Appeal No 18 of 1978) from the decision of Muli J [1977] Kenya LR 206 in which he had dismissed most of their heads of claim against the Government of Kenya, represented in the proceedings by the Attorney-General. The facts are set out in the judgment of Law JA.

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

JF Shields principal State counsel for the Attorney General.

Cur adv vult.

Ndiba v Republic

Court of Appeal, at Nyeri November 15, 1978

Madan, Wambuzi & Law JJA

Criminal Appeal No 24 of 1978

Evidence - statement admitting guilt - statement retracted - allegedly obtained by torture - trial within a trial held – medical evidence of injuries - absence of explanation from prosecution on how and when inflicted - statement subsequently admitted into evidence - no evidence linking the appellant to the offence.

Criminal Law - Murder - undisputed cause of death - lack of evidence linking offence to anyone.

The appellant was convicted of murder. The conviction was based on the evidence that the appellant was arrested on the night of the said murder with stolen cattle and evidence in a statement to the police in which he admitted his guilt. The appellant retracted the statement claiming that he was tortured to make it. In a trial within a trial to decide its admissibility the trial judge found as a fact that the statement was voluntarily made.

The appellant contends that the statement should not have been admitted in evidence.

Held :

1. In the absence of an explanation from the prosecution as to how and when the injuries were inflicted, it is impossible to rule out that this statement was extracted from the appellant by torture and raises doubt that it was a voluntary statement.

2.The retracted statement should not have been admitted in evidence and a conviction based on it cannot in law stand. In the absence of any other sufficient evidence connecting the appellant with the offence of which he was convicted except such a statement, then the conviction cannot stand. Conviction quashed and sentence set aside

Appeal allowed conviction quashed.

Cases

No case referred to.

Statutes

No statute referred to.

Lalji Bhimji Sanghani and another v Chemilabs

Court of Appeal, Nairobi 25th-29th September, 10th November 1978

Sir James Wicks CJ, Wambuzi & Law JJ A

Civil Appeal 5 of 1978

Landlord and tenant – covenant to repair – extent of liability under covenant – items outside demised premises – sewage inspection chamber.

Landlord and tenant – covenant to repair – breach – breach dependent upon notice – landlord not aware of defects.

Landlord and tenant – implied warranty – fitness of premises – structurally complete building.

Landlord and tenant – implied warranty – fitness of premises – warehouse.

Nuisance – escape from land – abnormal use of land – sewage inspection chamber – chamber becoming reservoir of sewage – occupier of land unaware of accumulation of sewage in chamber

The respondents, chemists and dealers in pharmaceutical goods, required premises for storage purposes and agreed to lease the ground floor and basement of a building from the appellants, who were aware of the purpose for which the premises were required. A letter outlining the agreement and dated July 1971 was signed by both parties. The letter also stated that the appellants would arrange for a formal lease to be drawn up. As certain work remained to be done, eg plastering and painting the walls and partitioning, the respondents did not go into occupation until September. In the following April, the appellants’ advocates sent a draft lease to the respondents’ advocates for execution. The draft contained, inter alia, a covenant by the appellants as lessors to keep the exterior of the building and the drains in good repair and condition. Two of the partners in the respondents’ firm, however, objected to some of the covenants in the draft lease and it was not executed. In July 1972, water and sewage flooded into the basement from an inspection chamber outside the building which remained under the control of the appellants. The inspection chamber had been designed and constructed by an experienced plumber who was an independent contractor. When it was built it had been inspected and approved by a city council inspector, even though it did not comply with the by-laws in every respect. After the flood, the independent contractor was called in, the flood was dispersed and the inspection chamber was cleaned out. At the time the independent contractor assumed that the flood had been caused by a temporary blockage such as might occur occasionally in any such system. In the following month, however, more serious flooding occurred from the same source (the “August flood”) and substantial damage was caused to the respondents’ property stored in the basement. The flood was primarily caused by the defective design and construction of the inspection chamber. This was not realised until after the August flood. The respondents sued the appellants and were awarded damages. On appeal,

Held:

Allowing the appeal,

1. That (per Law JA and Sir James Wicks CJ) although the terms of the draft lease had been agreed by the parties’ advocates and were therefore enforceable, the express covenant to repair did not relate to the inspection chamber which was not part of the building; moreover, even if the inspection chamber were within the scope of the covenant to repair, there could be no breach of the covenant until the appellants had notice of the need to repair and the appellants had received no such notice before the August flood; or (per Wambuzi JA) the terms of the draft lease had not been agreed by the parties and, accordingly no question of breach of express covenant could arise. Torrens v Walker [1906] 2 Ch 166 and Souza Figueiredo & Co Ltd v Moorings Hotel Co Ltd [1960] E A 926 applied.
2. That even though the appellants were aware of the purpose to which the part of the building let to the respondents was to be put, no warranty of fitness of the premises for use could be implied in the case of a structurally complete building; nor (if it were properly to be assumed that the building was incomplete at the relevant time) could a warranty of fitness for use as a warehouse be implied by law. Dictum of Lord Coleridge C J in Manchester Bonded Warehouse Co Ltd v Carr (1880) 5 CPD 507, 511 and Hoskins v Woodham [1938] 1 All ER 692 applied. Smith v Marrable (1843) 1 M & W 5, Miller v Cannon Hill Estates Ltd [1931] 2 K B 113, Perry v Sharon Development Co Ltd [1937] 4 All ER 390, Jennings v Tavener [1955] 2 All E R 769, and Hancock v BW Brazier (Anerley) Ltd [1966] 2 All ER 1 considered.
3. That the inspection chamber had been designed for the conduit of sewage and water and, accordingly, constituted a normal use of the appellants’ land; although it became a reservoir of sewage before the August flood, the appellants had no means of knowing that the sewage was accumulating immediately before the flood and, in the absence of negligence on their part, they were not liable for the consequences of the escape of the sewage. Ross v Fedden (1872) L R 7 QB 661, Blake v Woolf [1898] 2 QB 426 and Rickards v Lothian [1913] AC 263 applied. Rylands v Fletcher (1868) LR 3 H L 330 considered. Jones v Llanrwst Urban District Council [1911] 1 Ch 393 distinguished.
4. That since the inspection chamber had been approved by a city council inspector and the appellants did not become aware of its faults until after the August flood, they were not liable for having caused or continued the nuisance. Sedleigh-Denfield v O’Callaghan [1940] AC 880 applied.

Cases referred to in judgment:

1. Blake v Woolf [1898] 2 Q B 426, 67 LJQB 813, 79 LT 188.
2. Brown (Kevin) v James Norton [1954] IR 34.
3. Hancock v B W Brazier (Anerley) Ltd [1966] 1 WLR 1317, [1966] 2 All ER 901 CA.
4. Hollington Bros Ltd v Rhodes [1951] WN 437, [1951] 2 All ER 578 (note).
5. Hoskins v Woodham [1938] 1 All ER 692.
6. Jennings v Tavener [1955] 2 All ER 769.
7. Jones v Llanrwst Urban District Council [1911] 1 Ch 393, 80 LJ Ch 145, 103 LT 751.
8. Lockett v Norman-wright [1925] Ch 56, 94 LJ Ch 123, 132 LT 532.
9. Manchester Bonded Warehouse Co Ltd v Carr (1880) 5 C P D 507, 49 LJQB 809, 43 LT 467.
10. Miller v Cannon Hill Estates Ltd [1931] 2 KB 113, 100 LJK B 740, 144 LT 567.
11. Nesbitt v Meyer (1818) 1 Swan 223, 1 Wils Ch 97.
12. Perry v Sharon Development Co Ltd [1937] 4 All ER 390, CA.
13. Prem Lata v Peter Musa Mbiyu [1965] E A 592, EACA.
14. Raingold v Bromley [1931] 2 Ch 307, 100 L J Ch 337, 145 LT 611.
15. Rickards v Lothian [1913] A C 263, 82 LJPC 42, 108 LT 225, PC.
16. Ross v Fedden (1872) LR 7 Q B 661, 41 LJQB 270, 26 LT 966.
17. Rylands v Fletcher (1868) LR 3 HL 330, 37 LJ Ex 161, 19 LT 220, HL.
18. Sedleigh – Denfield v O’Callaghan [1940] AC 880, [1940] 3 All ER 349, HL.
19. Selle v Associated Motor Boat Co Ltd [1968] EA 123, EACA.
20. Smith v Marrable (1843) 11 M & W 5, 12 L J Ex 223.
21. Souza Figueiredo & Co Ltd v Moorings Hotel Co Ltd [1960] EA 926, EACA.
22. Torrens v Walker [1906] 2 Ch 166, 75 LJ Ch 645, 95 LT 409.

Appeal

 Lalji Bhimji Sanghani and Shamji Jinabhai Patel appealed to the Court of Appeal (Civil Appeal 5 of 1978) from a decision of Kneller J in the High Court on 30th August 1976 (in Civil Case 1062 of 1973) awarding damages in the main action and costs in a counterclaim which was not proceeded with to the respondents, Chemilabs.

The facts are set out in the judgment of Law JA.

Gerald Godfrey QC (of the English Bar) and DN Khanna (instructed by Khanna & Co) for the Appellants.

JM Nazareth QC and PN Khanna (instructed by PN Khanna) for the Respondents.

Cur adv vult.

Francis Bedford Pim v Francis Ruth Helen Morton

High Court , at Mombasa 15th, 16th September 25th October 1978

Harris J

Civil Case No 418 of 1975

Civil procedure - death, etc, of party - application by legal representative to be made party - time within which application to be made – amendment to rule as to time - Limitations of Actions Act (cap 22), section 4(1)(e) - Indian Limitation Act 1877, section 4, Second Schedule (Part III) – Civil Procedure Rules, order XXIII, rule 3(2) - Civil Procedure (Amendment) Rules 1978 (Legal Notice 88 of 1978), rule 2(p).

In 1975 the plaintiff filed a suit against the defendant claiming the return of Shs 20,000. On 23rd March 1976 the plaintiff died. If the plaintiff’s personal representatives wanted to be substituted for the plaintiff in the litigation, they were required by section 4(1)(e) of the Limitations of Actions Act to file an application to that effect within six years of his death (until 1st December 1967 a period of six months had been prescribed for such applications by section 4 of and the Second Schedule (Part III) to the Indian Limitation Act 1877 which had been replaced with effect from that date by the Lmitations of Actions Act). Moreover, if they did not make the application within the time limited by law the suit would abate in accordance with order XXIII, rule 3(2), of the Civil Procedure Rules.

On 2nd May 1978 the applicants were granted probate of the plaintiff’s will. They applied to the Court to be substituted for the plaintiff in his action against the defendant. On 1st July 1978, however, order XXIII, rules 3(2), was amended by the Civil Procedure (Amendment) Rules 1978, rule 2(p), so as to provide (in these circumstances) for a suit to abate if due application was not made within one year. On the question whether the applicants had applied to Court in time,

Held:

Granting the application,

(1) that there was no reason to suppose that there was any error in drafting the Limitations of Actions Act such as to preserve the original sixmonth period for such applications.

Dhanesvar V Mehta v Manilal M Shah [1965] EA 321 considered.

(2) That, in the absence of clear words to that effect, order XXIII, rule 3(2), as amended on 1st July 1978 could not be construed so as to give it retrospective effect and the relevant period for the application was accordingly six years.

Dictum of Newbold J A in Municipality of Mombasa v Nyali Ltd [1963] EA 371, 375, applied.

Cases referred to in judgment:

1. Dhanesvar V Mehta v Manilal M Shah [1965] EA 321, EACA.
2. Mombasa (Municipality) v Nyali Ltd [1963] EA 371.

Summons

The executors of the late Francis Bedford Pim (the plaintiff) applied to the Court to be made parties to his suit (Civil Case No 418 of 1975) against Francis Ruth Helen Morton. The facts are set out in the judgment.

HAT Anjarwalla for the Applicants.

JDR Shah (instructed by Atkinson Cleasby & Satchu) for the Defendant.

Cur adv vult.

Commissioner of Lands v Essaji Jiwaji & Public Trustee

Court of Appeal, Nairobi 24th October 1978

Sir James Wicks CJ, Wambuzi & Law JJ A

Civil Appeals Nos 15 and 16 of 1978

Land acquisition – compensation – payment not subject to withholding tax – acquisition not a transfer of land – constitution of Kenya, section 75(1)(c) – Land Acquisition Act (cap 295), section 8 – Income Tax Act (cap 470), Eighth Schedule, paragraph 6(1)(a).

Section 8 of the Land Acquisition Act which provides that full compensation should be paid promptly to all persons interested in land acquired compulsorily is in conformity with the requirements of section 75(1)(c) of the Constitution for the protection from deprivation of property and the consequence of withholding any of the compensation would be that full compensation was not paid.

The compulsory acquisition of land is not a transfer of land for the purpose of paragraph 6(1)(a) of the English Schedule to the Income Tax Act and hence that Act did not authorise any withholding of tax from compensation payable for the acquisition.

Cases referred to in judgment:

1. Kirkness v John Hudson & Co Ltd [1955] AC 696, [1955] 2 WLR 1135, [1955] 2 All ER 241, CA.
2. O’ Byrne (Marjorie) v Minister for finance and the Attorney-General [1959] 1 R 1, Ireland SC.

Appeals

The appeals to the Court of Appeal (Civil Appeals Nos 15 and 16 of 1978 ) by the Commissioner of Lands from the decision of Sheridan J on 23rd February 1977 in Civil Appeal No 18 and 20 of 1976 were consolidated and heard together.

JF Shields principal State counsel (instructed by the Attorney-General) for the Appellant.

C Salter QC and P Talari (instructed by Pandya & Talari) for theRespondents.