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.

Abubaker Madhubuti and Omar Athman Abafae v Salim Mohammed Balala and Saleh Muhsini Shigog

High Court, at Mombasa 17th March 3th, 12th April 1978

Sheridan J

Miscellaneous Cause No 5 of 1978

Company law - meeting of company - meeting ordered by Court – when Court will make order - deadlock in affairs of company - no prior meeting validly called – Company’s Act (cap 486), section 135(1).

The three issued shares in a company were owned by the two applicants, who were also directors of the company, and by Mrs S, who was not a director. The other directors were the two respondents who were the nominees of Mrs S Early in 1976 a dispute arose on the board. The applicants attempted to call an extraordinary general board meeting of the company with a view to retiring the respondents from the board.

Difficulties having been raised over the venue for the meeting, however, no meeting was held. Antoher dispute arose on the board in May. Attempts to hold a board meeting (where the quorum was four) were frustrated by the respondent’s failure to accept the suggested venue or to suggest an alternative. The applicants then attempted to convene an extraordinary general meeting. The notice of the meeting which was sent to Mrs S, however, did not stipulate the date of the proposed meeting; she did not attend and, there being no quorum in her absence, the meeting was dissolved. On the question whether the Court could properly order a meeting under the companies Act, section 135 (1),

Held:

That since it was reasonable to infer that it was improbable that Mrs S, the alter ego of the respondents, would attend a duly convened meeting and without her there could be no quorum, the Court should make an order under section 135(1) so that the affairs of the company could be attended to, even though no valid notice of a meeting had previously been sent to Mrs S.

Re El Sombrero Ltd [1958] Ch 900 applied.

Cases referred to in judgment:

El Sombrero Ltd, Re [1958] Ch 900, [1958] 3WLR 349, [1958] 3 All ER 1.

Paul (HR) & Son, Re (1973) 118 SJ 166, The Times, 17th November 1973, [1973] Current Law Yearbook 333.

Chamber summons

Two directors of and shareholders in Coffee and Tea Packers Ltd, Mr Abubaker Madhubuti and Mr Omar Athman Abafae, applied to the High Court (Miscellaneous Cause No 5 of 1978) for an order convening an extraordinary general meeting of the company to consider and, if thought fit, pass resolutions relating to the quorum for meetings of the board, to remove Mr Salim Mohammed Balala and Mr Saleh Muhsini Shigog (the respondents) from the board and to appoint the other shareholder, Mrs Anisa Shigog, as a director. The facts are set out in judgment.

IT Inamdar (instucted by Bryson, Inamdar & Bowyer) for the Applicants.

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

Cur adv vult.