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.

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.

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.

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.

Republic, through Devji Kanji v Davendra Valji Halai

Court of Appeal, Nairobi 19th September 5th October 1978

Sir James Wicks CJ, Wambuzi & Law JJ A

Criminal Appeal No 28 of 1978

Criminal law – trial – private prosecution – permission to institute – no objection to lack of permission until after close of prosecution case.

Criminal appeal – appeal from jurisdiction in revision – right of private prosecutor to appeal – Criminal Procedure Code (cap 75), section 361(1), (7).

When all persons concerned are aware that a prosecution is a private prosecution and the parties are represented by counsel, if no objection is raised to the absence of formal permission from the magistrate to the institution of such proceedings (in accordance with section 88 of the Criminal Procedure Code) until after the close of the prosecution case such permission may properly be inferred from the fact that the trial has been allowed to proceed so far.

R v Nunes (1935) 16 KLR 126 approved.

Kyangonga vUganda [ 1973] EA 486 applied.

Mohanlal Karamshi Shah v Ambalal Chhotabhai Patel (1954) 21 EACA 236 explained.

A private prosecutor as a party to proceedings in revision in the High Court is entitled in accordance with section 361(1) and (7) of the Criminal Procedure Code to appeal from that decision to the Court of Appeal, subject to the residuary control exercised by the Attorney-General over all criminal proceedings.

Cases referred to in judgment:

1. Kyangonga v Uganda [ 1973] EA 486, High Court of Uganda.
2. Mohanlal Karamshi Shah v Ambalal Chhotabai Patel (1954) 21 EACA 236.
3. Nunes v R (1935) 16 KLR 126.

Appeal

Appeal was made to the Court of Appeal (Criminal Appeal No 28 of 1978) from the decision of Sachdeva J in Revision (Criminal Case No 4 of 1978) in which he upheld a ruling of the Senior Resident Magistrate, Nairobi, that proceedings commenced by a private prosecutor were a nullity for want of permission to institute the proceedings. The facts are set out in the judgment of the court.

PN Khanna for the Appellant.

R Kapila for the Respondent.

Cur adv vult.

Chase International Investment Corporation and Another v Laxman Keshra and 3 others

Court of Appeal, Nairobi 11th July 1978

Madan, Wambuzi & Law JJ A

Civil Appeal No 8 of 1978

Estoppel – proprietary estoppel – sufficiency of interest in property – equitable owner representing that work would be paid for.

Restitution – criteria for ordering – unjust to allow retention of benefit received at expense of another.

Estoppel – promissory estoppel – distinguished from proprietary estoppel – whether distinction of practical importance.

An investment company, Chase, lent money to a company to build and operate two lodges. As security, the company executed a legal charge and debenture over its property and assets, and Chase was empowered to make appointments to the company’s board. Chase appointed O, one of its Vice-Presidents, as a director of the company. The company engaged the services of the firm L in 1971 under a building contract to erect the two lodges. At the end of that year, however, the company defaulted in repayments of its loan. In August 1972, the company’s auditors warned Chase that it was in financial difficulty and, in October, the company was unable to make a certified payment due to the firm L. After a board meeting of the company, O approached the firm L and persuaded it to complete the building of the two lodges by the end of the year; without warning the firm L that the company was unlikely to be able to pay for the work at that time, O said that the work would be paid for. The firm L, in reliance on the assurance and at considerable expense, completed work on the lodges. Receivers and managers were appointed under the debenture, however; the company’s land and the lodges were sold to a third party and, the proceeds of sale having been paid to the secured creditors, the company was unable to meet the firm L’s claim for the balance due for the building work. The firm L instituted proceedings against Chase and O.

Held:

That since O, who knew that the company was effectively without funds had given an assurance that if the lodges were completed payment would be made in full and since that representation had induced the firm L to complete the work to the ultimate benefit of Chase (which as equitable  owner of the land on which the lodges were built and in all the circumstances had a sufficient interest in the land), an estoppel in the nature of a proprietary estoppel had arisen and it was unconscionable for the firm L to be left without a remedy; in the alternative (per Madan and Wambuzi JJA), since Chase had been enriched by the receipt of benefit at the expense of the firm L and it would be unjust to allow Chase to retain the benefit at the expense of the firm L, a claim could properly be founded for restitution.

Inwards v Baker [1965] 2 QB 29 and Crabb v Arun District Council [1975] 3 All ER 865 considered.

Per Madan JA. the distinction as to the type of estoppel should be of little importance.

Cases referred to in judgment:

1. Argy Trading Development Co Ltd v Lapid Developments Ltd [1977] 1 WLR 444, [1977] 3 All ER 785.
2. Birmingham & District Land Co v London & North Western Railway Co (1888) 40 Ch D 268, 60 LT 527.
3. Crabb v Arun District Council [1975] 3 WLR 847, [1975] 3 All ER 865, CA.
4. Delgman v Guaranty Trust Co of Canada [1954] SCR 725, Canada SC.
5. Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, [1942] 2 All ER 122, HL.
6. Inwards v Baker [1965] 2 QB 29, [1965] 2 WLR 212, [1965] 1 All ER 446, CA.
7. James More & Sons Ltd v University of Ottawa (1974) 5 OR (zd) 162, High Court of Ontario.
8. Low v Bouverie [1891] 3 Ch 82, 60 LJ Ch 594, 65 LT 533, CA.
9. Lyle-Meller v A Lewis & Co (Westminster) Ltd [1956] RPC 14, [1956] 1 WLR 29, [1956] 1 All ER 248, CA.
10. Moorgate Mercantile Co Ltd v Twitchings [1975] 3 WLR 286, [1975] 3 All ER 714, CA.
11. Moses v Macferlan (1760) 2 Burr 1005, 1 Wm Bl 219, 97 ER 676.
12. Nurdin Bandali v Lombank Tanganyika Ltd [1963] EA 304, EACA.
13. Ramsden v Dyson (1866) LR 1 HL 129, 12 Jur N S 506, HL.
14. Rhodes, Re, Rhodes v Rhodes (1890) 44 Ch D 94, 59 LJ Ch 298, 62 LT 342, CA.
15. United Australia Ltd v Barclays Bank Ltd [1941] AC 1, [1940] 4 All ER 20, HL.
16. Willmot v Barber (1880) 15 Ch D 96, 49 LJ Ch 792, 43 LT 95.

Appeal

Chase International Investment Corporation (“Chase”) and George Edwin Oliver appealed to the Court of Appeal (Civil Appeal No 8 of 1978) from a decision of Kneller J in the High Court on 22nd September 1977 (in Civil Case No 1332 of 1974) ordering the appellants to make payment to Laxman Keshra, Premji Keshra, Kanji Bhimji and Manji Kanji (trading as Laxmanbhai & Co). The facts are set out in the judgment of law JA.

P J Wilkinson Q C and J A Couldrey (instructed by Kaplan & Stratton) for the Appellants.

Muir Hunter QC (of the English Bar) and S Inamdar (instructed by Inamdar & Inamdar) for the Respondents.

Cur adv vult.

Belinda Murai & 9 others v Amos Wainaina (No 3)

Court of Appeal, at Nairobi

May 25, 1978

Law JA

Civil Application No NAI 9 of 1978

(Application to Single Judge)

Appeal - extension of time - application for extension of time to lodge a further appeal - original appeal struck out for non-compliance with rule 85(1)(h) of the Court of Appeal rules - non-compliance due to advocate’s mistake - powers of the court to grant extension of time - jurisdiction exercised where sufficient reason is shown for extending time - whether or not the court’s discretion to grant or refuse extension of time is limited - whether advocate’s mistake could constitute sufficient reason for extension of time.

This is an application for extension of time to lodge a further appeal after the original appeal was struck out for non-compliance with rule 85(1)(h) of the Court of Appeal rules, by omission to include a certified copy of the formal order in the record of appeal. The extension of time was sought on the ground of the advocate’s bona fide mistake amounting to sufficient reason within the meaning of rule 4 of the Court of Appeal rules.

Held:

1. The court has jurisdiction to entertain an application for extension of time and the court can only exercise this power after considering certain factors namely, delay, public importance of the matter and the prospects of success of the intended appeal.

2. An advocate’s bona fide mistake, but not inordinate delay on the advocate’s part, may amount to sufficient cause. The applicants and their former advocate are not guilty of unreasonable delay. The only delay was due to the advocate’s bona fide but mistaken view that a formal order was not necessary.

3. The subject of this appeal is of great public importance because the decision to be appealed against, if upheld, would affect a large number of citizens of Kenya.

4. (Obiter Law JA) The decision sought to be appealed against established that an occupier of Kikuyu land known as a “Muhoi”, who by Kikuyu custom has rights of cultivation but cannot acquire proprietary rights to the land, could nevertheless acquire a title by adverse possession as  the land was registered under the Registered Land Act (Cap 300) as under Section 163 of that Act, the common law of England applied to registered land. There is evidence that about 30% of all Kikuyu homelands is occupied by “Ahoi” (the plural of ‘Muhoi’) and that if the decision in the suit is upheld, a large number of Kikuyu land owners will be liable to lose land which by custom cannot pass to a Muhoi by adverse possession. This, to my mind, is a question of general public importance in that it would affect a large number of citizens of Kenya and not merely the parties to the intended appeal.

5. (Obiter Law JA) The submission that the status of a “Muhoi” is regulated by custom but is not part of customary law is a fine distinction but is not entirely correct. The evidence on record shows that the status of a Muhoi is regulated by Kikuyu customary law.

Application allowed.

Editorial Note: The Court of Appeal Rules, rule 4 has since been amended vide legal notice number 14 of 1984. The amendment has given the Court of Appeal a much wider discretion in extending time. The court can now extend time where “it thinks just” and not only “for sufficient reason” as was the case before.

Cases

1. Ngoni-Matengo Co-operative Marketing Union Ltd v Alimohamed Osman [1959] EA 577 Applied & Approved
2. Attorney General of Kenya v Steve Clarke, Civil Appeal No 26 of 1974 (unreported) Disapproved
3. Tolo v Otina, Civil Appeal No 23 of 1974 (unreported) Disapproved
4. Shah H Bharmal and Brothers v Kumari [1961] EA 679 Applied & Approved
5. Hamam Singh and Others v Mistri [1971] EA 122 Applied & Approved
6. Kimani v Gikanga [1965] EA 735

Referred Statutes

1. Registered Land Act (Cap 300) Section 163
2. Court of Appeal Rules (Cap 9 Sub Leg) rule 4, rule 85(1)
3. Judicature Act (Cap 8) Section 3(2)

Advocates

Belinda Murai & 9 others v Amos Wainaina (No 3)

Court of Appeal, at Nairobi

May 25, 1978

Law JA

Civil Application No NAI 9 of 1978

(Application to Single Judge)

Appeal - extension of time - application for extension of time to lodge a further appeal - original appeal struck out for non-compliance with rule 85(1)(h) of the Court of Appeal rules - non-compliance due to advocate’s mistake - powers of the court to grant extension of time - jurisdiction exercised where sufficient reason is shown for extending time - whether or not the court’s discretion to grant or refuse extension of time is limited - whether advocate’s mistake could constitute sufficient reason for extension of time.

This is an application for extension of time to lodge a further appeal after the original appeal was struck out for non-compliance with rule 85(1)(h) of the Court of Appeal rules, by omission to include a certified copy of the formal order in the record of appeal. The extension of time was sought on the ground of the advocate’s bona fide mistake amounting to sufficient reason within the meaning of rule 4 of the Court of Appeal rules.

Held:

1. The court has jurisdiction to entertain an application for extension of time and the court can only exercise this power after considering certain factors namely, delay, public importance of the matter and the prospects of success of the intended appeal.

2. An advocate’s bona fide mistake, but not inordinate delay on the advocate’s part, may amount to sufficient cause. The applicants and their former advocate are not guilty of unreasonable delay. The only delay was due to the advocate’s bona fide but mistaken view that a formal order was not necessary.

3. The subject of this appeal is of great public importance because the decision to be appealed against, if upheld, would affect a large number of citizens of Kenya.

4. (Obiter Law JA) The decision sought to be appealed against established that an occupier of Kikuyu land known as a “Muhoi”, who by Kikuyu custom has rights of cultivation but cannot acquire proprietary rights to the land, could nevertheless acquire a title by adverse possession as  the land was registered under the Registered Land Act (Cap 300) as under Section 163 of that Act, the common law of England applied to registered land. There is evidence that about 30% of all Kikuyu homelands is occupied by “Ahoi” (the plural of ‘Muhoi’) and that if the decision in the suit is upheld, a large number of Kikuyu land owners will be liable to lose land which by custom cannot pass to a Muhoi by adverse possession. This, to my mind, is a question of general public importance in that it would affect a large number of citizens of Kenya and not merely the parties to the intended appeal.

5. (Obiter Law JA) The submission that the status of a “Muhoi” is regulated by custom but is not part of customary law is a fine distinction but is not entirely correct. The evidence on record shows that the status of a Muhoi is regulated by Kikuyu customary law.

Application allowed.

Editorial Note: The Court of Appeal Rules, rule 4 has since been amended vide legal notice number 14 of 1984. The amendment has given the Court of Appeal a much wider discretion in extending time. The court can now extend time where “it thinks just” and not only “for sufficient reason” as was the case before.

Cases

1. Ngoni-Matengo Co-operative Marketing Union Ltd v Alimohamed Osman [1959] EA 577 Applied & Approved
2. Attorney General of Kenya v Steve Clarke, Civil Appeal No 26 of 1974 (unreported) Disapproved
3. Tolo v Otina, Civil Appeal No 23 of 1974 (unreported) Disapproved
4. Shah H Bharmal and Brothers v Kumari [1961] EA 679 Applied & Approved
5. Hamam Singh and Others v Mistri [1971] EA 122 Applied & Approved
6. Kimani v Gikanga [1965] EA 735

Referred Statutes

1. Registered Land Act (Cap 300) Section 163
2. Court of Appeal Rules (Cap 9 Sub Leg) rule 4, rule 85(1)
3. Judicature Act (Cap 8) Section 3(2)

Advocates

1. Mr Satish Gautama for Applicants
2. Mr Wilkinson for Respondents

Abdulrehman v Almaery

Court of Appeal, at Nairobi

 May 25, 1978

Trevelyan Ag CJ, Wambuzi & Law JJA

Civil Appeal No 36 of 1977

(Appeal from the High Court at Nairobi, Madan J)

Civil Practice and Procedure - adjournment of suits - exercise of discretion - refusal to grant adjournment - power of the appellate court to interfere with refusal - appeal against refusal or order for adjournment - factors to be taken into consideration - principles applicable in applications for amendment.

The plaintiff filed a suit and on the day of the hearing the defendants sought an adjournment to enable them contact one of their witnesses who was absent. The court refused the adjournment. The issue of appeal is whether or not the adjournment should have been granted and whether the appellate court can interfere with the exercise of discretion of the trial court.

Held:

1. The refusal to grant an adjournment is within the discretion of the trial court and the appellate court cannot interfere with this discretion unless it has not been incorrectly exercised.
2. An adjournment ought to be granted as long as, it is not unreasonable, no apparent miscarriage of justice is likely to arise and extra expense occasioned by the adjournment can be compensated by way of costs.
3. An adjournment should be granted if refusal will cause the possibility of an injustice.

Appeal allowed. Order for retrial.

Cases

1. Balderkumar Mohindra v Mathuraderi Mohindra (1953) 20 EACA 56
2. Manubhai Bhailalbhai Patel v Richard Gottfired (1953) 20 EACA 81

Statutes

No statute referred to.