Muriithi v Attorney-General

High Court, at Nairobi 1981

Hancox J

Civil Case No 1170 of 1981

Transfer of suit – judicial bias – reasonable apprehension of bias – when court will allow transfer of suit on such grounds – duty of applicant to demonstrate grounds for his apprehension.

Judicial bias – existence of bias - transfer of case – where there exists reasonable apprehension of bias – duty of applicant to demonstrate grounds for his apprehension.

The plaintiff filed a suit challenging his retirement from the police force. On the day of filing the suit, his advocate personally approached a judge of the High Court (Cotran J) with what he said was an urgent application for a temporary declaration preserving the plaintiff’s rights as a pensionable officer of the police force.

The application was instead heard by Hancox J who dismissed it ([1986] KLR 772). The plaintiff’s advocate then raised a preliminary objection that Hancox J should not hear the substantive case as it had been fixed before Cotran J who, being properly seized of it, the Chief Justice did not have the power to take away his jurisdiction and give the case to another judge.

Held:

1. At the time when the Chief Justice directed Cotran J that the case should not come before him but before Hancox J, the file was not before Cotran J as proceedings had taken place and a ruling had been delivered.

2. Before a transfer of a case is granted on the application of a party, a clear case must be made out that the applicant has a reasonable apprehension in his mind that he will not get a fair and impartial hearing before the judicial officer from whom he wants the case transferred.

3. A reasonable apprehension of bias means an apprehension on reasonable grounds which has to be a real apprehension honestly held and reasonably based.

4. There were no grounds, reasonable or otherwise, presented in this case for the plaintiff’s apprehension and no valid reason had been advanced for the bias, partiality or lack of objectivity on the part of the presiding  judicial officer.

5. In a case of manifest urgency and exceptional circumstances that are such that it is not possible for a case to be fixed for hearing, a judge may be approached directly. However, ordinarily, the matter should be dealt with through the civil registry in a regular fashion.

Cases

1. Karanja v Republic Miscellaneous Criminal Application No 199 of 1976 (unreported)

2. Shilenje v Republic [1980] KLR 132

3. Majisu v Majisu Divorce Cause No 8 of 1977 (unreported)

4. Republic v Hashimu [1968] EA 636

Texts

1. Jowitt’s Dictionary of English Law

2. Stroud’s Judicial Dictionary

Statutes

No statutes referred.

Editorial Note

Subsequent to this ruling, Hancox J presided over the substantive suit. His decision thereon has been reported earlier in [1983] KLR 1.

..

Taylor v Bolus

High Court, at Nairobi November 26, 1981

Hancox J

Civil Case No 1760 of 1981

Civil practice and procedure - summary judgment – principles for entering summary judgment - where defendant has arguable case with reasonable grounds of defence or can show triable issue then summary judgment would not issue - leave to defend - whether in absence of bad faith on the defendants part court can impose conditional leave to defend - effect of conditional leave to defend on the defence generally.

The application arose out of a contractual dispute. The applicant had made payment of Kshs 300,000 to the respondent for possible purchase of shares in a company. The applicant contends that the money was to be held in trust by the respondent and that the purchase of shares be conditional upon the solvency of the company. It is argued on behalf of the applicant that the respondent failed to avail the company’s accounts for inspection and the applicant being doubtful of the company’s solvency had called off the intended purchase. As a consequence they were entitled to the return of the deposit as money had and received on a total failure of consideration.

On his part, the respondent argues there was no condition of solvency attached to the payment and that in actual fact the applicant had been allocated shares equivalent to the deposit and appointed a director of the company. The respondent admits no breach and alleges that the applicant is attempting to escape or avoid obligations arising out of a financial transaction gone sour. The court was being urged by the applicant to enter summary judgment in its favour on the basis that the repondent’s defence was a sham and was meant to delay that which is due to the applicant. In the alternative the applicant further urged the court to order conditional leave to defend by way of payment of the dispute sum to be held by the advocates jointly upon interest until the case is determined. The respondent vehemently opposed the prayers.

Held :

1. That it was an established principle of law that where the plaintiff’s claim is undoubted and clear and the defence is only a sham or a spurious one, the court would grant summary judgment as prayed.

2. That where the defendant demonstrates a fairly arguable case or show triable issue summary judgment would not issue and he must be given leave to defend.

3. That where the court is in doubt about the defendant’s good faith and would like to protect the plaintiff then a conditional leave to defend would hold especially where this causes no grave hardship on the defendant.

4. That in the present case, the court could not, on the basis of material before it award a summary judgment as there was no evidence that the defence would necessarily turn out to be a sham.

5. That in the event the defendant would be granted full leave to defend without a condition.

Application dismissed.

Cases

1. Kirat Singh & Co v Mehje [1952] 19 EACA p 33

2. Kundanlal Restaurant v Devshi [1952] 19 EACA p 77

3. Commercial Advertising and General Agency v Qureeish HCCC 55 of 1978

4. Kantibhai Patel v Josphine Motion HCCC 2910 of 1979

5. Zola v Railli Bros

6. Jacobs v Casey [1949] 1 KB at 481

7. Llyods Banking & Co v Ogle [1876] IEX D 263

8. Fieldrank Ltd v Stein 1961 3 All ER 681

9. Jacobs v Booth’s Distillary [1901] 85 LT 262

10. Souza Figuereido & Co v Moorings Hotel & Co Ltd [1958] EA 425

Statutes

Civil Procedure Rules Order XXXV rule 1

Advocates

Mr Khaminwa for Appellant

Mr Ransley for Respondent

Ole Meikoki v Ole Sirere

High Court, at Nairobi September 16, 1981

Trainor J

Civil Case No 3283 of 1980

Land - agreement for sale of land - transfer forms and the application for consent forms duly signed re-execution later required - refusal by vendor to re-execute - requirement for reexecution prompted by a letter without authority – application for an order for specific performance of agreement made.

The plaintiff entered into an agreement to buy land from the defendant. The defendant executed the application for consent and transfer forms. When the plaintiff tendered the documents for registration. The registration was denied because there was a letter from the Chief Land Registrar requiring that all land documents executed by thumbprint be done using special ink. The plaintiff subsequently prepared new documents for execution by the defendant, who then refused to re-execute them unless he was paid a further amount. The plaintiff as a result has made an application for an order for specific performance of the contract.

Held :

1. The letter issued requiring special ink was without a legal basis and the transfer should have been registered.

2. In this case registration ought to have been ordered without suing the plaintiff, by questioning the authority of the Chief Land Register’s letter and instituting proceedings against the Registrar.

3. The plaintiff is declared lawful owner and the transfer and deed be prepared accordingly by the Registrar.

4. No damages awarded as no evidence was given to this regard.

5. (Per Curiam) The Chief Land Registrar had no authority to issue the letter that he did and for this reason, the Registrar should have been the defendant in mandamus proceeding. If such proceedings had been instituted, it might well have been that registration would have been ordered without the necessity of suing the plaintiff; indeed had the advocates for the plaintiff taken the trouble to question the authority of the Chief Land Registrar it is likely that no proceedings at all would have been necessary.

Cases

No case referred to.

Statutes

No statute referred to.

Michira v Okiro

High Court, at Nairobi July 24, 1981

Masime J

Civil Case No 330 of 1981

Summary Judgment - application under Order XXXV of the Civil Procedure Rules for recovery of land - the format of the affidavit supporting the application under the Order not in compliance with Appendix A forms 3A and B of the Civil Procedure Rules - whether such non-compliance calls for dismissal - whether forms are directory or mandatory.

The applicant is the proprietor of the subject premises leased to the respondent. The applicant alleges that the lease was for one year and the respondent has refused to vacate. The respondent contends that he had exercised his option to renew for another year.

Held :

1. There are triable issues in this matter hence application under Order XXXV cannot be allowed, but since the lease expires in two weeks, the application is allowed.

2. Respondent to vacate as soon as second year ends.

3. The respondent to pay mesne profits of Kshs 2500 per month.

Application partly allowed.

Cases

No case referred to.

Statutes

Civil Procedure Act (Cap 21, Sub Leg) Civil Procedure Rules Order XXXV rule 1(b)

Advocates

Mr Oraro for Applicant

Mr Kapila for Respondent

Aggarwal v Singh

High Court, at Nairobi April 30, 1981

Simpson J

Civil Case No 2140 of 1980

Civil practice and procedure - summary judgment - determination of existence of triable issues - defective affidavits.

Landlord and tenant - lease - termination of lease by notices - notices not properly served - controlled tenancies - whether an application for assessment of rent amounts to a decontrol order - whether previous assessment of rent by tribunal makes the premises a controlled tenancy.

This was an application for summary judgment for possession and mesne profits by the landlords of a block of flats. The tenants had failed to recognize the notice to vacate alleging that it was improperly served. The tenants also argued that theirs was a controlled tenancy.

Held :

1. The assessment of rent by the Tribunal amounted to ceasure of the tenancies being within the Rent Restriction Act.

2. The respondents have failed to show that there were triable issues.

3. The applicants are entitled to mesne profits.

4. The notices to quit were valid.

5. The omission to state that in their belief there is no defence to the action is not fatal, since it is for the court to determine whether or not the defence filed raises triable issues.

6. The order by consent, record by the tribunal is merely a record made by the tribunal of an oral agreement reached by the parties and is not an order made by the tribunal.

Cases

1. Kalyan v Rasi Properties Ltd (CA 127 of 1979)

2. Valji v Byramjee & Sons [1952] XXV KLR 8

Statutes

1. Civil Procedure Act (Sub Leg) Civil Procedure Rules Order XXXV rule 1 & 2

2. Transfer of Property Act 1882 of India Section 106

3. Rent Restriction Act (Cap 296)

Advocates

Mr RN Khanna for Respondent

Muriithi v Attorney-General (No 2)

High Court, at Nairobi April 30, 1981

Hancox J

Civil Case No 1170 of 1981

(Chamber Summons Application)

Civil Practice and Procedure – interlocutory applications – temporary declaration of a party’s rights – application for – whether such relief provided for in law – whether such relief available against the government – Government Proceedings Act (cap 40) sections 13A(3), 16.

The applicant, who had been employed in the civil service and served as a police officer for 23 years, received a letter purporting to retire him and informing him of his appointment as a General Manager of Uplands Bacon Factory, a company in which the government held control. A date was stated in the letter by which he was required to hand over all the government’s property in his possession

In a suit in which he challenged his retirement, the applicant filed an application for a temporary declaratory order that the decision to retire him from the public service was null and void and that the requirements of the letter were of no legal effect pending the hearing of the case. In particular, his advocate contended that the effect of handing over the property in compliance with the letter would be that he would lose all his rights as a police officer and he asked the court to extend or stay the deadline set in the letter.

The respondent’s advocate took the preliminary objection that there can be no such thing as a temporary declaration of a person’s rights.

Held:

1. An order declaring the rights of the parties must in its nature be a final order after a hearing when the court is in a position to declare what the rights of the parties are.

2. Though the Government Proceedings Act in section 13A(3) mentioned an “order declaratory of the rights of the parties in lieu of a temporary injunction”, the legislature later recognised the inappropriateness of a temporary declaration and amended that section so as to delete the word “temporary”.

3. There is no such remedy against the government as a temporary order declaratory of the parties’ rights.

4. The Court did not have jurisdiction to extend the date stated in the letter.

Application dismissed.

Cases

1. Gachathi v Attorney-General High Court Civil Case No 1981 of 1979 (unreported)

2. Owino v Attorney-General High Court Civil Case No 111 of 1979 (unreported)

3. Underhill v Ministry of Food [1950] 1 All ER 591

Statutes

1. Constitution of Kenya section 25

2. Police Act (cap 84) sections 2, 8, 15

3. Government Proceedings Act (cap 40) sections 13A(3), 16, 16(1)

4. Crown Proceedings Act 1947 [UK] section 21

5. Public Authorities Limitation Act (cap 39)

6. Statute Law (Miscellaneous Amendments) Act, 1975 (Act No 7 of 1975)

Advocates

Mr J M Khaminwa for the Applicant.

Mr Shields, Chief State Counsel, for the Respondent.

Editorial Note

The judgment which determined the substantive issues in this case is reported in [1983] KLR 1.