Mwalagaya v Bandali

Court of Appeal, at Mombasa October 30, 1980

Law, Miller & Potter JJA

Civil Appeal No 10 of 1980

(Appeal from the High Court at Mombasa, Kneller J)

Civil Practice and Procedure – originating summons – procedure of –Registration of Titles Act (cap 281) section 57(5) – matters which originating summons may deal with – procedure where questions of right arise – whether parties should proceed by suit in such circumstances – Civil Procedure Rules order XXXVI rule 10.

Statute – interpretation of – statute law and subsidiary legislation – conflict between -Registration of Titles Act (cap 281) section 57(5) – Civil Procedure Rules order XXXVI rule 10 – Civil Procedure Rules allowing dismissal of originating summons and reference of dispute to ordinary suit where question of law arises – statute allowing originating summons to continue in such circumstances – how such conflicts are resolved.

Caveat – withdrawal of – procedure of - Registration of Titles Act (cap 281) section 57(5) – how jurisdiction of court to withdraw a caveat is invoked – originating summons – procedure where questions of right arise.

The appellant, who had lodged a purchaser’s caveat against the title to the disputed land, made an application to the High Court by way of originating summons under section 57(5) of the Registration of Titles Act (cap 281) and order XXXVI of the Civil Procedure Rules seeking to have another caveat later lodged by the respondent on the same land withdrawn and a declaration made that he (the appellant) was the rightful purchaser of the land. The respondent raised a preliminary objection to the application on the ground that the application touched on disputed questions of fact which could not be dealt with by way of originating summons. The High Court upheld the preliminary objection and dismissed the summons. The issue arising on the appellant’s appeal was the interpretation of section 57(5) of the Registration of Titles Act and the procedure prescribed therein.

Held:

1. The jurisdiction conferred on the court by the Registration of Titles Act (cap 281) section 57(5) is invoked by the procedure of originating summons.

2. The question arising in this case as to which of the two opposing caveats was valid in law was a “question of right” as contemplated within the Registration of Titles Act section 57(5).

3. Where a question of right arises in proceedings commenced by originating summons under the Registration of Titles Act section 57(5), that section does not require that the proceedings shall subsequently be continued by a civil suit in the ordinary way but, rather, that the originating summons proceedings shall conform as nearly as possible to proceedings by way of civil suit.

4. It was a mandatory requirement of section 57(5) that a question of right arising in the originating summons proceedings should be proceeded with using the rules of the court in civil cases and the order discontinuing the originating summons was incorrect.

5. The Civil Procedure Rules order XXXVI rule 10 which empowers a judge to dismiss an originating summons and refer the parties to a suit is inconsistent with the Registration of Titles Act section 57(5) which did not permit such dismissal or reference.

6. As Section 57(5) of the Registration of Titles Act was a provision of statute, it would prevail over rule 10 of order XXXVI of the Civil Procedure Rules which is subsidiary legislation.

Appeal allowed.

Cases

1. Kulsumbai v Abdulhussein [1957] EA 701

2. Boyes v Gathure [1969] EA 385

3. Taylor v Taylor (1875-1876) 31 LR Ch D 426

Texts

Odgers, W.B., Principles of Pleading and Practice, 21st Edn. p 319-320.

Statutes

1. Registration of Titles Act (cap 281) sections 24, 29, 57(5)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rules 9, 10

3. Civil Procedure Act section 81(2)(g)

Advocates

Mr Inamdar for Appellant

Mr Lakha for Respondent

Dangerous drugs – possession - meaning of “possession” - Dangerous Drugs Act (cap 245), section 10(e).

Francis Charo Opo  v Republic

Court of Appeal, Mombasa

23rd October 1980

Law, Miller & Potter JJ A

Criminal Appeal No 39 of 1980

Criminal law – evidence – corroboration - what constitutes corroboration -proved opportunity to commit offence falsely denied.

The proved opportunity to commit an offence may amount in particular circumstances to corroboration, if the accused has falsely denied the existence of the opportunity. Dictum of Ainsley J in R v Erunasani Sekoni s/o Eria (1947) 14 EACA 74, 76, applied.

Case referred to in judgment:

1. R v Erunasani Sekoni s/o Eria (1947) 14 EACA 74

Francis Charo Opo appealed to the Court of Appeal (Criminal Appeal No 39 of 1980) against his conviction and sentence for incest before Kneller J in the High Court, Mombasa, on 30th July 1980. The facts are set out in the judgment of the court.

Advocate

The appellant was present in person.

G Dulu State Counsel for the Republic.

John Njeru v Republic

Court of Appeal, Mombasa

9th May 1980

Madan, Law & Potter JJ A

Criminal Appeal No 6 of 1980

Criminal appeal – order for retrial - grounds for order – original trial illegal or defective – original trial resulting in an acquittal.

In general, retrial should only be ordered when the original trial was illegal or defective; a fortiori when the first trial resulted in an acquittal. Fatehali Manji v The Republic [1966] EA 343 and Aloys v Uganda [1972] EA 469 applied.

Cases referred to in judgment:

1. Aloys v Uganda [1972] EA 469, Russell Ag J.
2. Atito v The Republic [1975] EA 278, EACA.
3. Fatehali Manji v The Republic [1966] EA 343 EACA.

Appeal

John Njeru appealed to the Court of Appeal (Criminal Appeal No 6 of 1980) against an order for retrial made by Kneller J on 20th December 1979 on an appeal by the Republic (Criminal Appeal No 267 of 1979) against an acquittal on charges of causing death by dangerous driving.

Advocate

E Rugaita (instructed by Rugaita & Kibugi) for the Appellant.

H Harwood provincial State counsel for the Republic.

Esmailji v Mistry Shamji Lalji & Co

Court of Appeal, at Mombasa February 6, 1980

Madan, Law & Miller JJA

Civil Appeal No 23 of 1979

(Appeal from the High Court at Mombasa, Kneller J)

Arbitration – stay of proceedings – application for – under section 6 of the Arbitration Act – discretion of the court to grant an order for stay of proceedings – exercise of discretion – principles applicable – factors to be taken into consideration – where the onus of proving that stay should be granted lies – discharge of onus.

The appellants applied for stay of proceedings to allow the dispute be referred to arbitration. The court refused the stay. The appellant has appealed against this decision on the ground that it was improper exercise of discretion and that the principles applicable were not properly applied.

Held:

1. It is a condition precedent that before the court can exercise its discretion to make an order staying proceedings the applicant must satisfy the court that he is and was at all times willing to do everything necessary for the proper conduct of arbitration. Failure to show this to the satisfaction of the court will result in refusal for stay of order.

2. The established principles, governing the grant of stay of proceedings is that:

a) the court is not bound to grant the stay but has discretion to grant or not to grant.

b) the discretion to grant should not be exercised when strong cause for doing so is shown.

c) the burden of proving such strong cause is on the plaintiff.

d) in exercising its discretion the court should take into account the circumstances of the particular case.

e) A mere balance of convenience is not enough.

3. The onus of proving that the matters in dispute fell within a valid and subsisting arbitration clause is on the party applying to the court for a stay of proceedings, once this burden has been discharged then the burden shifts to the opposing party to show cause why effect should not be given to arbitration clause.

Cases

1. Bulk Oil (Zug) AG v Trans-Asiatic Oil Ltd SA (1973) l Lloyd’s Law Report 129, 136

2. Kenya Oil Company Limited v Abdul Sultan Jiwa Nathoo and another, Civil Appeal 50 of 1977 (unreported)

3. Piercy v Young (1880) 14 Ch D 200, 209

4. Willesford v Watson (1873) LR 8 Ch App 473

5. The Eleftheria (1969) 1 Lloyd’s Rep 237, 242

Statutes

Arbitration Act (cap 49) section 6

Advocates

Mr Jiwaji for Appellant