Nzioki v Kitusa

Court of Appeal, at Nairobi December 23, 1982

Law, Potter JJA & Hancox Ag JA

Civil Appeal No 54 of 1982

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

Review - application for - powers of the court thereof – circumstances under which such an application can be dismissed - dismissal without hearing parties - whether such dismissal proper.

Appeal - summary dismissal of - appeal - exercise of power to do so by court - summary dismissal of second and final appeal - whether such dismissal proper.

The appellants, being dissatisfied with the decision of a magistrate’s court in its appellate jurisdiction, filed a second appeal to the High Court which was summarily dismissed. The appellants then applied to the High Court for a review of the order dismissing their appeal and the judge, without hearing argument on the merits of the application, observed that it was not a proper case for review and suspended it indefinitely. By a subsequent addition to the order made in the absence of the parties, the judge added that in his view the application had “virtually no chance of success”, and stated a date on which it would be mentioned. From this order, the apellants appealed on the principal ground that the judge erred in dismissing the application for review without hearing the parties.

Held:

1. The Civil Procedure Act section 79B empowers the High Court to summarily dismiss an appeal where the court considers that there is no sufficient ground for interfering with the decree appealed from.

2. The power of summary dismissal should be used sparingly and only in the clearest cases, such as an appeal based entirely on points of facts, raising no questions of law and not as the case was here where the memorandum of appeal raised substantial grounds of law such as that of adverse possession.

3. It was wrong to dismiss the appeal summarily as the appeal to the High Court was a second appeal and therefore a final appeal.

4. The application for review was never heard and it could not therefore lawfully have been dismissed.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Act (cap 21) sections 71A(2), 79B, 80

2. Civil Procedure (Revised) Rules 1948 (cap 21 Sub Leg) order XLII rule 1(1) (aa); order XLIV rule 1

Advocates

Mr Mervyn Morgan for Respondent

Mr JB Patel for Appellant

Muthuita v Wanoe

Court of Appeal, at Nairobi

December 3, 1982

Madan, Potter JJA & Hancox Ag JA

Civil Appeal No 12 of 1982

Land - registration of land - trust - when beneficial owner is in possession of land - claim by beneficial owner for adverse possession - registration of land in name of appellant - whether land held and registered in trust for appellant and respondents - requirement of trust to be indicated on land register - whether trust exists despite failure to indicate it on register - whether Resident Magistrate had jurisdiction to declare trust. Adverse possession - requisite elements of adverse possession - claim thereof in the absence of proof of possession over definable portions of land - land held in trust - whether beneficial owner can claim adverse possession - whether adverse possession and trust mutually exclusive. Jurisdiction - of resident magistrate’s court - power to declare a trust.

The three respondents, being the mother and two younger brothers of the appellant, filed a suit against the appellant in a Resident Magistrate’s Court in which the main issue was whether or not the appellant (defendant), who had become registered as the proprietor of the land in dispute, held that land in trust for himself and the respondents. The respondents averred that the appellant’s father had died before the commencement of land consolidation while possessed of some fragments of land which after his death were consolidated, demarcated and registered by his widow in the appellant’s name. It was also averred that the respondents had been in continuous uninterrupted occupation of the land by which they had acquired a title by adverse possession.

The appellant defendant had pleaded that his clan had put him in the position of his deceased father and he was, just as his father, the sole proprietor of the suit land and that there was no trust. He also pleaded that the respondents had been on his land with his consent not as proprietors but as family members. The trial magistrate, in finding for the appellant defendant, concluded that the rights of a registered proprietor could not be defeated except by interests shown on the register or by overriding interests detailed in the Registered Land Act (Cap 300). On appeal to the High Court, the judge, after reviewing the evidence, found that the appellant was registered as trustee for himself and the plaintiffs, but stated that in any case, the Resident Magistrate had no jurisdiction to declare the existence of a trust, from which decision the appellant filed an appeal.

Held:

1. A registered proprietor is not relieved from obligations to which he is subject as a trustee, by Section 28 of the Registered Land Act (Cap 300). 2. The absence of a reference to a trust in an instrument of acquisition of land does not affect the enforceability of a trust existing in the land. The provisions requiring reference to a trust in Section 126 of the Registered Land Act are not mandatory but merely permissive.

3. There was ample evidence of the history of the land and of the relevant customary law to justify the judge’s finding that the appellant was registered as proprietor of the suit premises as trustee for himself and the respondents.

4. The Resident Magistrate’s Court did have jurisdiction to declare the existence of trust. The jurisdiction existed and was derived from Section 159 (now repealed) of the Registered Land Act (Cap 300) and its jurisdiction was wide as that of the High Court.

5. It is not a mandatory requirement in adverse possession that the applicant be in possession of definable portions of land. Section 101 of the Registered Land Act impliedly accepts the notion of ownership of undefined portion of land.

6. (Obiter Potter JA) The claims to entitlement to interest in land under a trust and by reason of adverse possession are not incompatible and can be advanced by the same plaintiff in respect of the same land.

Cases

1. Gatimu Kinguru v Muya Gathangi [1976] KLR 253 Distinguished & Followed

2. Bridges v Mees [1957] 2 All ER 577 Distinguished & Approved

3. Ahmed AbdulKarim v Member for Lands and Mines [1958] EA 436 at p 441 letters H & I Followed & Approved Texts

1. KM Maini, Land Laws in East Africa, (1967), Oxford University Press, p 192

2. DJ Hayton, Underhill’s Law Relating to Trusts and Trustees, Butterworths & Co: London, 13th Edn (1979) p 361

Statutes

1. Limitation of Actions Act (Cap 22) Section 13 (1), 18 (2), 38

2. Limitation Act 1939 [UK] Section 7 (3) (5)

3. Native Land Tenure Rules, 1956

4. Registered Land Act (Cap 300) Sections 27, 28, 30, 101 (4), 126(1), 159

5. Trusts of Land Act (Cap 290)

Advocates

KM Maini for Appellant

AJ Kariuki for Respondent

L K Mwanthi v S K Mwithimbu & F M Imanene

Court of Appeal, at Nairobi

November 30, 1982

Madan, Law JJA & Hancox Ag JA

Civil Appeal No 13 of 1982

Civil Practice and Procedure - summary judgment - interlocutory applications - application for summary judgment - form of - effect of noncompliance with form - whether noncompliance can be cured - defective affidavits - whether triable issue raised in defence.

Appeal - record of appeal - supplementary record of appeal - contents of - introduction of additional evidence at appeal - Court of Appeal Rules rule 85(1)(k).

Res judicata - essential elements of res judicata - when is a matter directly and substantially in issue in a pending case - Civil Procedure Rules Order XXXV rule 1.

The respondents rented out a shop to the appellants at an agreed monthly rent of Kshs 4,500 from, according to the respondents, May 1, 1979 and according to the appellant, from September 1, 1979. The respondents filed a suit against the defendant for the recovery of the arrears of rent for the last three months of 1979 and the first seven months of 1980. In his defence, the appellant denied owing the sum claimed and averred that the tenancy had not commenced on the date alleged by the respondents and that there was a case pending in the Business Premises Rent Tribunal touching on the same issue of arrears of rent between the parties. The respondents nevertheless applied for summary judgment averring in support of the application that the defendant was “justly and truly” indebted to them and was so indebted at the commencement of the suit. The appellant filed an affidavit in reply restating the averments raised in the defence and the respondents filed a supplementary affidavit, without the leave of the court, containing additions of certain matters deponed in the original affidavit. The judge entered summary judgment for the respondents/plaintiffs and the defendants/appellants filed an appeal and later a supplementary Record of Appeal containing case papers and the record of the proceedings before the Rent Tribunal. The record showed that the dispute before the tribunal was in respect of rent for the months of May to August 1979.

Held:

1. The supplementary record of appeal did not amount to additional evidence but was a mere augmentation of the original record which had been inadvertently omitted and which were necessary for the determination of the case and could be allowed under rule 85(1)(k) of the Court of Appeal Rules.
2. The issues directly and substantially in issue in the suit were not the same ones directly and substantially in issue before the Rent Tribunal.
3. Where an application fails to strictly comply with a form provided by the Civil Procedure Act (Cap 21) in some cases it can be saved by Section 72 of the Interpretation and General Provisions Act (Cap 2).
4. An affidavit is a repository of evidence or information and any defects or omissions in an original affidavit may be cured or supplemented by a subsequent affidavit.
5. The date of commencement of the tenancy was a triable issue and conditional leave to defend should have been given.
6. (Obiter Hancox Ag JA) Where a court to which an application for summary judgment has been made is not satisfied with the bona fides of the defence for being shadowy or dubious, leave to defend should be granted conditionally.

Appeal allowed.

 Cases

1. Dreyfus, Les Fils, et cie Societe Anonyme v Clarke [1958] 1 WLR 300 Applied
2. Zola v Ralli Brothers Limited [1969] EA 691 Referred
3. Cassidy v Engwirda Construction Co [1967] QWN 16 Referred

Texts

IH Jacob, et al, (Ed), The Supreme Court Practice, 1982, Sweet & Maxwell, Stevens & Sons Ltd: London, (1982) Vol I p 163

Statutes

1. Civil Procedure Act (Cap 21) Sections 6; 12(e)
2. Civil Procedure Rules (Cap 21 Sub Leg) Order XXXV rules 1(2); 9; Appendix A Form 3A
3. Court of Appeal Rules (Cap 9 Sub Leg) rule 81(5)(k)
4. Interpretation and General Provisions Act (Cap 2) Sections 3; 72
5. Rent Restriction Act (Cap 296) Section 31

Advocates

Mr RN Khanna for Appellant

Mr Satish Gautama for Respondents

Shah v Aggarwal

Court of Appeal, at Nairobi

November 12, 1982

Madan, Law & Potter JJA

Civil Appeal No 60 of 1981

Landlord and tenant - controlled tenancy - chargeable rent under the Rent Restriction Act (cap 296) - increase in standard rent - procedure when effecting rent increment - effect of the increment on the application of the Act.

Jurisdiction - of the Rent Restriction Tribunal - whether jurisdiction to assess standard rent exercisable while contractual tenancy is in force - validity of consent agreements recorded at tribunal.

The appellants were monthly tenants on two separate flats on a block for which they were under controlled tenancies at the standard rent of Kshs 500 under the Rent Restriction Act (cap 296). The respondents purchased the flats and applied to the Rent Tribunal for assessment of the standard rent, which was done at Kshs 1,070 per month. After its ruling, the tribunal recorded a consent order to the effect that it was agreed between the respondents and the appellants that the respondents shall pay a monthly rent of Kshs 1,500 for twelve months beginning March 1, 1979 and that they would be at liberty to vacate earlier upon giving one month’s notice.

The appellants continued to occupy the flats under the terms of that consent order and, in due course, the respondents gave to each of them a month’s notice to quit, the expiry of the notice being made to coincide with the end of the twelve-month period. The respondents then commenced separate actions, which were later consolidated, claiming possession, mesne profits, costs and interest. The respondents applied for summary judgment submitting that there were no triable issues as the tenants had willingly agreed to the agreement recorded by the tribunal.

The appellants, on the other hand, submitted that the consent order had been ultra vires the tribunal and was a nullity. When summary judgment was granted against the appellants, they appealed and it was argued, inter alia, that the tribunal had no jurisdiction to assess the standard rent of premises where a contractual tenancy was still in force.

Held:

1. The consent order was merely a record made by the tribunal of an oral agreement reached between the parties in the presence of their advocates. The consent order was therefore valid and enforceable.

2. A contractual tenancy must first be terminated before increases of rent can be recovered under the terms of the Rent Restriction Act (cap 296).

3. The power of the Rent Restriction Tribunal to assess the standard rent is not subject to any condition precedent. Where the Tribunal increases the standard rent without removing the premises from the application of the Act, the landlord will have to terminate the existing contractual tenancies and to serve a notice of increase of rent on the tenant before the landlord can recover that rent.

4. Where the Tribunal assesses the standard rent at a level which removes the premises from the application of the Act, section 14 of the Act has no application.

Appeal dismissed.

Cases

1. Gershuni v Ombima [1975] EA 135

2. Kerr v Bryde [1923] AC 16

3. Newell v Crayford Cottage Society [1922] 1 KB 656

Statutes

1. Rent Restriction Act (cap 296) (Revised Edition 1979) sections 3(c), 4(2)(a)(iv), 5(1)(a), 10, 11, 12, 13, 14(1), (2)

 2. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rules 1, 2

3. Increase of Rent and Mortgage Interest (Restriction) Act 1920 (UK) sections 2, 3(1)

Advocates

Mr Khanna for Appellants

Mr Sharma for Respondents

Wamutu v Kiarie

Court of Appeal, at Nairobi

November 10, 1982

Madan, Law & Potter JJA

Civil Appeal No 64 of 1981

Civil Practice and Procedure - pleadings - striking out - application for striking out of suit - power of the court to strike out - striking out under Order VI rule 13 - striking out on grounds of suit being scandalous, frivolous and vexatious - ground of abuse of the court process – meaning of an unmaintainable suit - application of Section 21 of the Registered Land Act (Cap 300) where suit is not maintainable.

Appeal - leave to appeal - grounds for granting leave to appeal - right of appeal under Order XLII rule 1 - refusal to grant leave without assigning reasons - application of Section 21 where a suit is not maintainable.

Judgment - contents of - provisions of Order XX rule 4 - effect of failure to write the judgment in accordance with the provisions thereof.

Land adjudication - boundary dispute - dispute not referred to Land Registrar - whether court has jurisdiction to hear suit on the dispute - Registered Land Act (Cap 300) Section 21(2)(4).

The plaintiff instituted a suit against the defendants, who were the owners of neighbouring land, claiming that they had altered the common boundary and alienated a portion of his land. The plaintiff asked for an order for reinstatement of the boundary and damages resulting from the infringement. The defendants denied being the transgressors but also averred that the boundary had not been fixed by the Land Registrar. A consent order was entered referring the matter to the Land Authorities for fixing of the boundaries. Before this could be done, however, the defendants applied for the suit to be struck out under Order VI rule 13 of the Civil Procedure Rules. The application was granted with no reasons given. The appellant appealed.

Held:

1. A judge has no power to refuse leave to appeal under Order XLII rule 1(1), which provides that an appeal shall lie as of right from an order made under Order VI.

2. Judgments in defended suits shall contain a concise statement of the case, points of determination, the decision thereon and the reasons for such a decision as required by Order XX rule 4 of the Civil Procedure Rules.

3. Section 21(4) of the Registered Land Act provides that the court has no jurisdiction to hear a matter relating to boundary disputes of registered land, unless the boundaries have first been determined by the Land Registrar. The court, in this instance, had no inherent power to hear and determine the suit because Section 21(4) of the Registered Land Act (Cap 300), deprives it of jurisdiction.

4. Even though the defendants had not applied to strike out the plaint, the court was bound to take note of the provisions of Section 21(4) of the Registered Land Act and do so of its’ own motion.

5. The order striking out the plaint was properly granted because the court had no jurisdiction since the matter was a boundary dispute as defined by Section 21(4) of the Registered Land Act.

6. The earlier order referring the matter to the land authorities was illegal and a nullity as the court had no jurisdiction to grant such an order.

7. (Obiter Law JA) “The registrar must carry out the mandatory duty imposed on him by law and demarcate the disputed boundary under Section 21(2) of the Registered Land Act (Cap 300).”

Cases

No cases referred to.

Statutes

1. Registered Land Act (Cap 300) Section 21(2)(4)

2. Civil Procedure Rules (Cap 21 Sub Leg) Order VI rule 13, Order VI, Order XX rule 4, Order XLII rule 1

Advocates

Mr Gaturu for Appellant

Ngoya & 5 others v Republic

Court of Appeal, at Nairobi

October 28, 1982

Law, Potter JJA & Kneller Ag JA

Criminal Appeal No 136 of 1981

 (Appeal from the High Court at Nairobi, Chesoni & O’Kubasu JJ)

Evidence - of identification - circumstances that favour accurate identification - assessment of.

Criminal Practice and Procedure - trial within a trial - procedure to be adopted in- were there are several accused persons - whether to hold a trial within a trial for each accused person.

Criminal Practice and Procedure - charges – joinder of charges – circumstances favouring joinder - relevant circumstances.

Evidence – confessions - evidence in - evidence of implication in confessions - weight given to such evidence.

Held:

1. In accepting evidence of identification the court should take into consideration the circumstances at the time and assess whether or not the same favoured accurate identification
2. It is preferable that in all cases where there are several accused persons to hold separate trials within a trial, but the failure to do so is not fatal unless prejudice can be shown to has been occasioned, which is not the case here.
3. Section 136 (6) of the criminal procedure code provides that where persons accused of the more offences than one of the same kind can be joined in one charge and tried together if the offences were committed by all the accused jointly; however in this case the offences were not committed by all the accused jointly. The fact that they were committed by the same gang, using the same weapons and having the same character is not a reason to join them.
4. Evidence by way of implication is the weakest type of evidence and according to the evidence act it can only be taken into consideration under section 32(1) only to lend assurance to other evidence, but it should not be considered independently.

Appeals dismissed accordingly.

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 296(2), 304(1)(a), 306(a)
2. Criminal Procedure Code (cap 75) sections 135(1), 136(c)
3. Evidence Act (cap 80) section 32(1)

Advocates

1. Mr Mugo for the Republic
2. Mr Kirundi for the 1st, 4th and 6th Appellants
3. Mr Odero for the 2nd Appellant

Chandaria v Njeri

Court of Appeal, at Nairobi

 October 12, 1982

Law, Potter JJA & Kneller Ag JA

Civil Appeal No 61 of 1981

Retrial - powers of the appellate court - power to order retrial - definition of mistrial requiring retrial - circumstances amounting to mistrial - proof of mistrial.

Appeal - powers of appellate court to order retrial.

Civil Practice and Procedure - framing of issues of law and of fact - Order XIV rule 1(5) of the Civil Procedure Rules.

The appellants were landlords who leased their premises to the respondent (tenant) at a monthly rent of Kshs 6,000. The lease was not registered and was not expressed to be for any specified period but only expressed as terminable by either party giving a three months’ notice or if rent remained unpaid for seven days after becoming payable. The tenant fell into arrears for three months and after several letters demanding rent being ignored, the landlord evicted the tenant. The tenant instituted a suit in court to recover the deposit paid and damages for wrongful eviction. The trial judge, preferring the evidence of the tenant to that of the witness called by the landlords and without giving reasons for disbelieving the witness, awarded the tenant Kshs 21,000 being the deposit and damages for wrongful eviction. The landlords appealed against the decision on the ground that it was a mistrial.

Held:

1. The failure to deal with all issues raised and give reasons for believing a witness amounted to a mistrial and consequently the case must be remitted back to the High Court for retrial.
2. The record of proceedings at the lower court must frame issues properly, record issues, deal with every issue and set out reasons for reaching a certain conclusion. Without these details it is impossible for the Court of Appeal to substitute or uphold the findings of the lower court.

Appeal allowed. Case remitted to the High Court for a retrial.

Cases

No case referred to.

Statutes

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

Shah v Padamshi

Court of Appeal, at Nairobi September 24, 1982

Madan, Potter JJA & Kneller Ag JA

Civil Appeal No 5 of 1982

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

Civil Practice and Procedure – summary judgment – granting of – principles the courts should apply – existence of triable issues – parties’ affidavits disclosing matters requiring testing demeanour and evidence of witnesses – whether proper to give summary judgment in such case - how defendant’s defence is relevant in such an application.

Landlord and Tenant – tenancy - termination of – notice of – landlord sending notice by ordinary mail without certificate of posting – whether presumption arising that tenant would receive notice in due course – Interpretation and General Provisions Act (cap 2) section 3(5).

Evidence – expert evidence – handwriting expert – judge comparing signatures without involving expert – judge attributing signatures to defendant – whether judge’s assessment of signatures proper.

The respondents applied to a Rent Tribunal for an assessment of rent for their premises and after the tribunal approved an increased rent, the respondents terminated the appellant’s monthly tenancy by a notice which they sent by ordinary post without a certificate of posting. The respondents later filed a suit for the eviction of the appellant who, in his defence, stated, inter alia, that he had not been served with a notice of the hearing for the proceedings at the tribunal or the alleged notice of termination of the tenancy, that the Tribunal’s assessment of the rent was a nullity and that the suit was improperly before the High Court as he was still a protected tenant of the premises under the Rent Restriction Act (cap 296). The respondents filed an application for summary judgment in which they put in affidavits, one deponing, inter alia, that the appellant had proposed to pay the increased rent and remain on the premises and the other by one of the respondent’s advocates deponing that he had served the appellant with the respondent’s application to the Rent Tribunal which he accepted by signing on a copy of it, a further copy of which was attached to the affidavit.

The appellant’s replying affidavit reiterated the averments in his defence. The judge, in granting summary judgment, compared the signature on the appellant’s affidavit with the one on the copy of the hearing notice allegedly served on him and held that he had been served with both the notice and the posted notice of termination of tenancy, that his tenancy had been terminated and there existed neither any triable issues nor a bona fide defence. The appellant appealed.

Held:

1. The judge erred in comparing the signatures and attributing both of them to the appellant without the involvement of an expert and further in discrediting the appellant’s evidence on the basis of the finding on the signatures.

2. There was a triable issue on whether the appellant had received the notice allegedly terminating his tenancy as the appellant had denied receipt of such notice. A presumption that a letter sent would reach its addressee in due course would only arise in the case of a letter sent by registered post-Interpretation and General Provisions Act (cap 2) section 3(5).

3. The contents of the parties’ affidavits required that the case should proceed to full trial and this had not been a proper case for the judge to prefer the affidavit of one party against that of the other.

4. Caution should be exercised in granting summary judgment as it is a drastic remedy involving the denial of the party against whom it is given his right to defend the claim made against him.

5. In dealing with applications for summary judgment, if a triable issue is found to exist, the court must order a trial even if the court strongly feels that the defendant is unlikely to succeed at the trial.

Appeal allowed.

Cases

Shah v Aguto [1970] EA 263 at 268

Statutes

1. Rent Restriction Act (cap 296)

2. Interpretation and General Provisions Act (cap 2) section 3(5)

3. Evidence Act (cap 80) section 119

4. Transfer of Property Act 1882 section 106

Advocates

Mr Pall for Respondents