Anyanzwa v Gasperis

Court of Appeal, at Nairobi December 29, 1981

Law, Miller & Potter JJA

Civil Appeal No 31 of 1981

Negligence - vicarious liability - principal and agent – liability of principal for negligent driving of agent - driver employed by hirer of motor vehicle - circumstances under which owner can be liable for agent’s negligence - whether owner is vicariously liable for negligence of driver employed by hirer.

Insurance - motor insurance - third party risks – driver authorized - liability of insurer to satisfy damages.

A tours and travel company hired a motor vehicle from its owners to carry a party of tourists. The hiring company employed its own driver to drive the hired vehicle. The vehicle overturned and injured some of the tourists. The injured tourists filed a suit against the hirers of the vehicle, and the owners of the hired vehicle, but did not sue the personal representative of the driver (the driver having been killed in the accident). The defence was, among other things, that the hirers were not at the material time agents of the owners of the vehicle, or acting with prior consent and authority of the owners, and could not, therefore, be made liable, as owners of the vehicle, for the negligence of the driver employed by the hirers of the vehicle.

Held :

1. For one to establish vicarious liability it must be shown that the agent at the material time was acting on the owner’s behalf and for the owner’s benefit. Mere knowledge or permission of the owners is not enough to establish vicarious liability.

2. The owners were not vicariously liable for the driver’s negligence, because the driver was not driving the vehicle at their request, or as their servant, and they had neither delegated any task/ duty to him nor had they any interest, concern or control over it or the driver at the material time; furthermore the vehicle was not at the material time being driven for their benefit.

3. A third party who has been injured by the negligent act of a driver of an insured motor vehicle of another person may have his damages satisfied by the insurer of that motor vehicle, only if the driver (or if he is deceased, then his personal representative) was joined as a defendant, his negligence established and judgment obtained against the driver or his employer. It is also conditional that the insured motor vehicle was at the material time being driven by the driver as an authorized driver within the terms of the policy of insurance.

Appeal allowed.

Cases

1. Selle & Another v Associated Motor Boat Co Ltd [1968] EA 123 (CA-Z)

2. Morgans v Launchbury & Others [1972] 2 All ER 606 (HL-E)

3. Hewitt v Bonvin & Another [1940] 1 KB 188 (CA-E)

4. Cooke v Santos Maquel & Another High Court of Kenya at Mombasa Civil Case No 250 of 1973 (unreported)

Statutes

Civil Procedure Act (Cap 21) Order IV rule 1(5)

Civil Procedure Rules (Cap 21, Sub Leg) Order IV rule 1(5)

Advocates

Mr IT Inamdar for Appellant

Mr Ogango for Respondent

Agip (K) Ltd v Kibutu

Court of Appeal, at Nairobi December 21, 1981

Law, Potter JJA & Simpson Ag JA

Civil Appeal No 43 of 1981

Arbitration - contract containing arbitration clause - suit for breach filed in court - no application for stay of proceedings filed as required under Section 6(1) of the Arbitration Act - matter ordered to be referred to arbitration without the mandatory stay order - format of application for stay of proceedings - whether application can be made through pleadings - conditions to be satisfied before application can be granted.

Jurisdiction - does the existence of an arbitration clause affect the jurisdiction of the court to entertain a suit - does the filing of a defence invoke the jurisdiction of the court - can one after filing defence deny the jurisdiction of the court.

Injunction - application for - dismissal of application without hearing the merits.

Remand - case remitted for retrial.

The appellant and respondent had entered into an Operator Agreement Contract to lease a petrol station. A dispute arose relating to construction on the petrol station. The appellant alleged that the respondent had breached the agreement. The agreement contained an Arbitration clause. The respondent filed a suit in the High Court. The appellant filed a defence arguing that the matter should be referred to arbitration but made a counter claim in the same defence.

The trial Judge held that clause 14 of the agreement required the dispute to be referred to arbitration in the preliminary issue in the defence of the respondent/defendant. The judge further held that the respondent/defendant had correctly raised the preliminary issue but had counter claimed in the alternative should the preliminary objection not succeed. The Judge then proceeded to dismiss the application for the temporary injunction without hearing the merits of the case. The appellant/plaintiff appealed on the grounds that; The learned judge erred in finding that the case should be referred to arbitration; the judge erred in making a ruling on the preliminary issue raised by consent of the parties for determination of the court before hearing the main application for the issue of a temporary injunction; the judge misunderstood the decision in Maluki v Oriental Fire and General Insurance [1973] EA 162 and finally that the judge erred in dismissing the application for a temporary injunction without giving the parties an opportunity to be heard.

Held :

1. An order for stay of proceedings is an essential prerequisite before a matter can be referred to arbitration as set out in Section 6 (1) (b) of the Arbitration Act Cap 49. The application for stay must be made before any step is taken in the suit.

2. An application for stay of proceedings pending the enforcement of the Arbitration clause should be made by way of Notice of Motion supported by an affidavit and cannot be disguised as a point of law in a pleading.

3. An order for stay of proceedings cannot be implied from the pleadings or in a ruling, the judge must clearly make such an order and before order can be granted, the applicant must satisfy the court that he will assist in all that is necessary for the proper conduct of the arbitration. Therefore even if the defence could be said to be an application the “applicant” had not satisfied the court accordingly.

4. The defence and counterclaim in this case constituted a step taken and invoked the jurisdiction of the court, after which it was no longer open for the defendant to apply for stay.

5. Where the trial judge dismisses an application for a temporary injunction without hearing the merits and demerits of a case, the appellate court has no choice but to remit the matter to the high court for retrial.

6. The plaintiffs application for the temporary injunction be remitted to the High Court to be heard and determined by another judge and all formal orders be set aside.

Appeal allowed.

Cases

1. Maluki v Oriental Fire and General Insurance [1973] EA 162

2. Purshottam v Keshavlal (21 EACA) 111

3. Kenya Oil Co Ltd v Rajwani & Rajwani (C App No 50 of 1977) (unreported)

Statutes

1. Arbitration Act (Cap 49) Section 6(1) & (b)

2. Arbitration Act Section 6(1)(a)

Advocates

Mr AA Lakha for Appellant

Mr Kirundi for Respondent

Musa v Life Agencies International (Kenya) Ltd

Court of Appeal, at Nairobi December 16, 1981

Madan, Miller & Potter JJA

Civil Appeal No 13 of 1981

Company Law - winding-up - whether winding up by court start upon the presentation of the petition - winding up order results in cessation of the directors - to act on behalf of the company - appointment of a receiver - receiver appointed out of court the management and control of the company is taken over by them.

Charge - delay to register a charge may render it void ab initio.

Judgment - discretion - whether the judge rightly exercised his discretion in granting orders sought - the exercise of a judge’s discretion ought not to be lightly interfered with by a Court of Appeal save, only when error of judgement has occurred resulting in a wrong decision.

A serious dispute arose between the only two directors and shareholders of the company leading to dead lock, which made it impossible for them to carry on the business of the company jointly. Despite the existence of serious conflict of facts the trial judge proceeded without hearing any evidence to resolve the conflict in the usual manner of first evidence in-chief, then cross examination, and if necessary re-examination. On appeal the parties agreed on remission for retrial.

Held :

1. Where there are serious conflicts of facts and yet the Judge proceeded with a full hearing to reach a decision as to which facts are correct, the court has no choice but remit the petition back to the High Court for a hearing de nevo by another judge.

2. Where the court is unable with reasonable satisfaction to the court decide on the truth of the facts, it is better to proceed to full hearing.

Cases

No case referred to.

Statutes

No statute referred to.

Advocates

Satish Gautama Esq for Appellants

Messrs Machira & Co Advocates for Respondents

Anditi v Republic

Court of Appeal, at Nairobi November 20, 1981

Madan, Law & Potter JJA

Criminal Appeal No 79 of 1981

Evidence - identification - accused chased and caught at night as he tried to escape from the scene - area illuminated by electric lights - appellant seen dropping an object – whether circumstances favourable to positive identification – possession of distinctive article.

The appellant was convicted of burglary contrary to Section 304(2) and stealing from a dwelling house contrary to Section 279(b) of the Penal Code.

A neighbour, saw the appellant coming out of the complainant’s house with a suit case at 7.30 pm of that fateful night. She alleged to have shouted at him and asked him what he was doing. He dropped the suit case and ran off. She saw him again pick up an electric iron which was lying hidden in grass in front of the complainant’s house. She alerted the complainant who caught up with him and took him to the police station with the iron. There was no any other evidence against the accused. The trial magistrate convicted him and the High Court dismissed his first appeal.

On his third appeal to the Court of Appeal it was argued that the evidence of identification was unsatisfactory in that it was the evidence of a simple eye witness at night and that the court below admitted it uncorroborated and without warning itself.

Held :

1. In assessing evidence, a magistrate should not only look at the honesty of the witness. The magistrate has a duty to take into account the possibility that the witness is mistaken. Failure to take this into account is an error.

2. It is trite law that facts proved by a single witness can form the basis for a conviction. But this rule does not lessen the need to test with great care the evidence especially when it is identification made under unfavourable conditions. In such a case there must be other evidence circumstantial or direct pointing to guilt. The judge erred in convicting on the basis of such uncorroborated evidence.

Appeal allowed. Conviction quashed.

Cases

1. Roria [1967] EACA 583

2. Kamau [1975] EACA 139

3. Abdalla Wendo [1953] 20 EACA 166

Statutes

Penal Code Sections 279(b) & 304(2)

Advocates

Mr Ogutu for Appellant

Kijiba v Republic

Court of Appeal, at Nairobi

November 20, 1981

Madan, Law & Potter JJA

Criminal Appeal No 80 of 1980

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

Evidence – additional evidence – not at preliminary inquiry – discovery after preliminary inquiry - notice of – under section 301 of the Criminal Procedure Code (cap 75) – contents of notice – reasonable notice – factors taken into consideration.

Evidence – oral testimony from memory – refreshing memory from inadmissible document – whether refreshing one’s memory from an inadmissible document renders the evidence inadmissible.

The appellant was charged and convicted of murder contrary to section 204 of the Penal Code (cap 63). He appealed against the conviction on the grounds that the court relied on inadmissible evidence and that the prosecution’s notice of additional evidence did not adequately state the substance of the evidence which the witnesses intended to give contrary to section 301 of the Criminal Procedure Code (cap 75).

 Held:

1. Unless the oral evidence itself is inadmissible, it does not become inadmissible because the witness refreshes his memory from an inadmissible document.
2. No witness who has not given evidence at the preliminary inquiry shall be called by the prosecution at the trial unless the accused person has received reasonable notice in writing of the intention to call such a witness.
3. Section 301 of the Criminal Procedure Code (cap 75) provides that all evidence known to the prosecution at the time of the preliminary inquiry and which it is intended to call shall be disclosed at the preliminary inquiry.
4. Where the prosecution later and or after the preliminary inquiry decides that some evidence which it was not intended to call ought to be called, it shall be disclosed as soon as possible after its discovery.
5. The notice of additional evidence should contain the addresses and names of the witnesses and the substance of the evidence which they shall give.
6. The court shall not, as in this case, allow notices which are sketchy, indeterminate and insufficiently indicative of the real substance of the evidence of the witnesses.
7. The purpose of the notice as laid out in section 301 is to enable one to be able to know the evidence and be able to adequately prepare for a rebuttal.
8. In deciding whether or not a notice was served within reasonable time, the court must take account the factors mentioned in section 273(3) and may also take into account other relevant factors.
9. The court may and must consider the nature of the evidence and in particular its importance, its complexity, the likelihood of surprise and the possibility that evidence and in rebuttal which might have been available earlier may no longer be available.
10. The prosecution did not in this case comply with section 301 and hence the evidence was disregarded for the purposes of appeal.

Appeal dismissed, conviction upheld.

Cases

1. Haining v Republic [1970] EA 620

Statutes

1. Criminal Procedure Code (cap 75) sections 273(a),(b),(c); 301(1),(2)

Advocates

1. Mr Kirundi for the Appellant
2. Mr Nebutete for the Respondent

Ekai v Republic

Court of Appeal at Nairobi November 17, 1981

Law, Potter JJA & Simpson Ag JA

Criminal Appeal No 115 of 1981

Murder - murder weapon - whether failure by the prosecution to prove that the murder weapon had been in the possession or was the property of the appellant is fatal to a conviction of murder - sentence for - accused shown following medical evidence to be aged between seventeen and twenty years – no exclusion of possibility that he may have been under eighteen years on the day of the offence - appropriate sentence would be conviction and detention during the pleasure of the President.

Evidence - retracted confession - whether allegations of torture and illtreatment not supported by medical evidence ought to be admissible - whether a trial court can rely on the accused voluntary statement containing demonstrably untrue elements - Judges Rules - whether breach occasioned by lack of the accused’s signature on the certificate of voluntariness at the end of the statement renders such statement inadmissible - circumstancial evidence - accused found in possession of stolen property - presumption that the accused was at the crime scene on the day of the murder - Evidence Act - call for reform in the manner of receiving and recording of confessions from accused persons.

The appellant had been tried and convicted of murder by the High Court for the murder of Mrs Joy Adamson, a famous Wildlife Conservationist, who lived inside the Shaba Game Reserve near Isiolo. Evidence was adduced indicating that on the day of the murder, Mrs Adamson, like on several occasions, had taken an evening walk but failed to return prompting a search by her assistant Mawson that led to a discovery of her body in a pool of blood with several cuts on it about 200 metres from the camp. A post mortem examination performed two days later showed that the deceased had several cut wounds inflicted by a sharp bladed weapon penetrating to a depth of 20 cm.

Investigations relating to the evening of the murder showed that the two gates to the animal enclosure at the back of the camp were found to be open even though they had been bolted by the deceased. Further, a trunk in the deceased’s tent had been forced open with an iron crowbar and papers scattered all over. Investigations revealed that nothing was missing following this robbery. About a month earlier, a similar robbery at the camp occured during which property belonging to the deceased and Mawson was stolen.

The accused was detained by police officers at Baragoi Post some 300 kilometres from Shaba Camp on February 2 when he went to report that he had been attacked by bandits. He was the only person amongst the deceased’s recent employees who had not been interviewed concerning the murder of Mrs Adamson. Apparently he had left her service sometime in December following a dispute over pay. At Isiolo he was interviewed by a Senior Police Officer and he denied any knowledge of the murder. On February 4 he made an ‘inquiry’ statement under caution and confessed having caused the murder of Mrs Adamson. On the same day he accompanied police officers to the scene of the murder where he showed them the swamp where he had thrown the murder weapon as well as where he had hidden the battery belonging to Mawson’s Toyota. Though the knife was not found after extensive search in the swamp, the battery was recovered and fully identified as belonging to the said Toyota.

The accused was charged with the murder of Mrs Adamson on February 5 and he again made another full confession detailing how he prosecuted the murder. He signed his confession and the caution but omitted to sign the certificate at the end of the statement. Later, he led Police Officers to a house belonging to his sister in Kampi ya Garba where he produced a haversack property stolen from the deceased and Mawson during the early robbery at the camp.

The accused was later taken for medical examination by a Dr Mwaniki who found no injuries except scars described as tribal marks. Dr Ngatia who examined the accused on a later date differed with Dr Mwaniki and attributed the scars to beatings inflicted on the accused. During both occasions Superintendent Giltrap was present.

At the trial the accused sought to retract his confession and alleged that he had been tortured and forced to sign the statement. In a trial within a trial the judge admitted the confession and held them substantially true having been corroborated in many respects. He rejected the appellants defence and held that his alibi was a fabrication. He convicted the accused and under statutory age, detained him during President’s pleasure.

The accused now appeals against the conviction.

Held :

1. That even though the murder weapon had not been produced, the conviction stood on the basis of the post-mortem examination which established beyond all reasonable doubt that the fatal injury had been caused by a sharp bladed weapon and not by a wild animal as submitted by the appellant.

2. That allegations of illtreatment and torture, though of grave concern to the court, had not been shown to be true and the court having had the benefit of assessing medical evidence before it was entitled to dismiss the appellant’s claims.

3. That on appeal touching on admissibility of an appellant’s confession respect must be had to the trial judge’s findings of fact and reasoning being the person best able to appreciate the circumstances under which the confession was made.

4. That where a statement contains a material element that would make the confession demonstrably untrue and one which must have been in the knowledge of the person making the confession, then the value of the confession as a whole is destroyed but where, as in the present case, a substantially truthful confession contains mistakes, it is proper for a trial judge to rely on it as being of evidential value.

5. The Judge’s Rules being rules of procedure do not prescribe a mandatory requirement that the certificate of voluntariness at the end of the statement be signed by the maker as a condition of admissibility and are by large the discretion of the trial judge to admit such statement having established that it was made voluntarily.

6. That possession of recently stolen items from the deceased by the appellant and the similarity of the manner in which both breakins were executed creates a strong irresistible inference that the appellant was at the murder scene on the day of the crime and completely negates his alibi.

Appeal dismissed.

Cases

1. Anyangu v Republic [1968] EA 239

2. Aneriko v Uganda [1972] EA 193

3. Republic v Rennie [1982] 1 All ER 385

Statutes

Evidence Act (Cap 80)

Advocates

G Imanyara & Mr Kiome for Appellant

JE Gicheru for Respondent

Kenya Commercial Bank Ltd v Karanja

Court of Appeal, at Nairobi October 16, 1981

Madan, Miller & Potter JJA

Civil Appeal No 18 of 1981

Civil practice and procedure - compromise of suit - whether it is equitable to allow proceeding against remaining defendants where one defendant was released as guarantor under his guarantee.

Jurisdiction - Novation - whether there could be a proceeding in court concerning a suit which had already been determined by the same court - whether a counter claim amounts to a fresh suit.

Joinder of parties - whether joinder of parties could be by implication. Limitation of Actions Act (Cap 22) Civil Procedure Rules Order XVI rule 6, VIII rule 2, VI rule 13.

The original suit filed was dismissed on grounds that there was no step taken within the meaning of Order XVI rule 6. The first defendant in this suit had filed a defence and counterclaim, in which defence he contended that he was not a party to the suit. The plaintiff made an application to strike out the second defendants defence to the counter claim. The trial judge held that Order XVI rule 6 had no application to a suit, which had been determined. The appeal against this decision. At appeal it was argued a new situation had arisen since the Ruling of Nyarangi J in that a settlement had been reached between the appellant bank and the first defendant. The main argument at appeal was that Order XVI rule 6 does not entitle a plaintiff to bring an old suit in the guise of a fresh suit in the form of a counterclaim.

Held :

1. The object of Order XVI rule 6 is not to deprive the court of Jurisdiction to entertain the same suit again as a fresh suit neither is it intended to deprive a plaintiff of his cause of action in that suit which is not extinguished.

2. The fresh suit envisaged by Order XVI rule 6 would still be subject to the law of limitation as a matter of normal operation of law.

3. A counterclaim is a fresh suit and the defendant instituting it becomes a plaintiff for all intents and purposes.

4. To make a bare denial is contrary to the rules of pleadings and such defence or paragraph of defence should be struck out. However a sensible view of such a pleading must be taken, the defence must be reasonable meaning one that can stand some chance of success when only the pleading is considered.

Appeal allowed

Cases

1. John Lancaster Radiators Ltd v General Radiator Co Ltd and others [1946] 2 All ER 685

2. Adkins v The North Metropolitan Tramways Company [1894] 63 LJ QBD 361

Statutes

1. Limitation of Actions Act (Cap 22)

2. Civil Procedure Act (Cap 21, Sub Leg) Orders XVI rule 6, VIII rule 2, VI rule 13 & XIV rule 5(1)

Advocates

Mr Le Pelley for Appellant

Mr Salter for Respondent

Ng’ang’a v Republic

Court of Appeal, at Nairobi October 9, 1981

Law, Miller & Potter JJA

Criminal Appeal No 50 of 1981

Evidence - witnesses - failure by prosecution to call material witnesses - evidence of identification of a single witness - questioning of witnesses when accused is unrepresented.

Criminal practice and procedure - defective charge, failure to state particular felony the accused was preparing to commit.

The appellants were convicted of preparing to commit a felony. The appeals to the High Court were all dismissed. They appealed on the following four grounds; that the evidence of identification was not good, that material witnesses were not called, that the claims of knowledge were made but no evidence was given and that the accused persons were referred to by numbers and not names thereby causing confusion.

Held :

1. The prosecution may elect not to call a material witness, but they do so at the risk of their own case. The courts accept as a matter of practice that it is not possible for informers to be called to the stand.

2. The evidence of identification of a single witness should be carefully tested. Where an accused person is unrepresented, it is the duty of the magistrate to question the witness to establish his recognition.

3. When one is charged with preparing to commit a felony, the particulars of the charge should show the particular felony intended. The failure to show the felony intended is not a fatal defect - especially where having looked at the charge it was obvious what felony the accused was about to commit and also if it is clear that the accused was not prejudiced in anyway.

4. The omission did not prejudice the appellant therefore the convictions are upheld.

We endorse the criticism expressed by the High Court of the practice of referring to accused persons solely by a number.

Appeal dismissed.

Cases

1. Abdalla Wendo v Republic [1953] 20 EACA 166

2. Rex v Bakari bin Yusuf [1940] VII EACA

Statutes

Penal Code (Cap 63) Section 308(1)

Advocates

Mr Owuor for Appellant

Awili v AG

Court of Appeal, at Nairobi October 1, 1981

Law, Miller & Potter JJA

Civil Appeal No 28 of 1981

Defamation - defamatory words - whether slander is actionable without proof of special damages.

Vicarious Liability - whether government would be liable for slander uttered by its servant in a public baraza, ostensibly in the course of and within the scope of his employment – whether absence of principal’s authority and consent affords the principal defence in respect of servant’s tort - Section three (3) of Defamation Act (Cap36).

The appellant, who was honorary secretary of Harambee Dip Project, filed a suit at Kisumu against the Attorney-General claiming damages for a slanderous statement allegedly uttered at a public baraza by one Aloo Obare who was a Chief, in Siaya District. The respondent, admitted in his defence that the Chief spoke and published the words complained of, but denied that they were defamatory, and claimed that even if they were defamatory, they were not actionable without proof of special damage.

He also pleaded that the words were true in substance and in fact, and alternatively that the occasion of publication was one of qualified privilege, in that the chief had a legal, moral, public and social duty to publish the words complaint of. The defendant further averred that the plaint did not disclose a cause of action against the defendant insofar as the same did not aver or disclose that the Chief was acting in the course of and within the scope of his employment and that the plaint should be struck out. The High Court judge dismissed the suit as disclosing no case to answer, because “for a master that is to say the government to be liable for its servant’s utterances which happen to be defamatory, the plaintiff has to prove that the words were uttered with the principal’s authority and consent”. This was challenged on appeal.

Held :

1. It is not necessary to prove that the slanderous words were uttered with the principal’s authority; it is enough to show that the servant uttered the words in the course of employment.

2. A master is liable for acts not authorised, (proper or improper), as long as they were connected with duty and other authorized acts.

3. The judge erred in holding that there was no case to answer yet a prima facie case had been established.

4. That the suit is to be remitted to High Court before another judge for hearing and determination.

Appeal allowed.

Cases

1. Gray v Jones [1939] 1 All ER 798

2. Muwonge v Attorney-General of Uganda [1967] EA 17

3. Canadian Pacific Railway v Lockhard [1942] All ER 464

4. Patel v Yafesi and others [1972] EA 28 at p 31

Statutes

Defamation Act (Cap 36) Section 3

Ragui v Republic

Court of Appeal, at Nairobi September 16, 1981

Madan, Miller & Potter JJA

Criminal Appeal No 60 of 1981

Evidence - whether absence of independent evidence would make a conviction unsustainable.

Appeal - summary rejection of appeal by the High Court – when does the High court have power to reject the appeal summarily under Section 352 (2) of the Criminal Procedure Code.

The appellants in this case were convicted for causing grievous bodily harm contrary to Section 234 of the Penal Code. The only evidence in support of the charge was that of the complainant, who gave contradictory statement. The trial magistrate convicted all the appellants. Their appeal to High Court was summarily rejected, hence this appeal.

Held :

1. The first appeal was rejected unlawfully

2. Conviction quashed and sentence set aside.

Appeal allowed.

Cases

No case referred to.

Statutes

1. Penal Code (Cap 63) Section 134

2. Criminal Procedure Code (Cap 75) Sections 352 & 361