Mwangi Muraguri v Kamara  Rukenya

Court of Appeal, at Nairobi December 2, 1983

Hancox JA, Chesoni & Platt Ag JJA

Civil Appeal No 10 of 1983

Land - jurisdiction of subordinate courts in land matters - powers of Land Registrar under the Registered Land Act (cap 300) - whether the subordinate court could supercedes or alter the actions of the Registrar exercised under the Act.

The appellant and the respondent were the owners of contiguous plots of land and had a boundary dispute. Rukenya had sued Muraguri in the subordinate court. Muraguri had altered the boundary and erected a fence constructively excising part of Rukenya’s land. The dispute was referred to the Land Registrar who together with the surveyor visited the locus in quo and determined the boundary and delineated the same on the registry map in ‘red’. The suit drawn by the plaintiff, Rukenya, was ostensibly to confirm the boundary as marked by the Registrar. The court upset the findings of the registrar and held that the fence was supposed to be situated along the fence that Muraguri had built. Rukenya appealed to the High Court where the finding by the learned magistrate was reversed. The High Court held that the learned magistrate had no jurisdiction to entertain the dispute because the powers exercised by the Land Registrar under the

Registered Land Act (cap 300) were such that they could not be overruled by the subordinate court. Muraguri appealed to the Court of Appeal.

Held:

1. The subordinate court had no power to alter the boundary fixed by the Land Registrar and the attempt to do so was without legal sanction.

2. (Obiter Platt Ag JA) Only the Land Registrar could determine a boundary as per the provisions of the Registered Land Act (cap 300) and it was only the High Court that could entertain a challenge to the boundary per section 149 of the Registered Land Act.

3. The boundary fixed by the Registrar was the boundary the parties were to recognise and it was not to be interfered with and since the appellant had moved away from the portion, an order for injunction was superfluous.

Appeals dismissed.

Cases

No cases referred to.

Statutes

Registered Land Act (cap 300) sections 21, 22, 149, 159

Advocates

Mr Chakava for Appellant

Mr Kaburu for Respondent

Municipal Council of Kitale v Nathan Fedha

Court of Appeal, at Nairobi

November 23, 1983

Kneller, Hancox JJA & Platt Ag JA

Civil Appeal No 7 of 1983

Appeal - record of appeal - defective record - failure to include copy of decree in record of appeal - whether such failure a defect curable by filing a supplementary record - whether advocate’s oversight in compiling record of appeal amounts to sufficient reason within rule 4 of Court of Appeal Rules - application for extension of time - contents of application - need for a sufficient statement on nature of judgment and reasons for appeal.

Three applications were considered by the court. In the first, the appellant applied for leave to include a copy of the High Court decree into the record of appeal as it had been filed without it. Notice of appeal had been lodged within time. The record of appeal was filed a day after extracting the High Court decree, but the decree was signed by the deputy registrar three days after it was extracted. The appellant’s advocate could nevertheless have filed the record of appeal with the copy of the signed decree later and still be within time, but had chosen not to do that. In the second application, the respondent applied for the record of appeal to be struck out on technicalities and, inter alia, failure to serve within time and the non-inclusion of a copy of the decree. The third application was by the appellant seeking extension of time within which to serve the notice of appeal which had admittedly been served late.

Held:

1. An advocate’s oversight in compiling the record of appeal is normally not a “sufficient reason” within rule 4 of the Court of Appeal Rules (Commercial Bank of Africa Ltd v General Motors Kenya Ltd (Civil Appeal No 45 of 1981; [1982] KLR 185).

2. The failure to include the decree appealed from in the record of appeal rendered the appeal incompetent. The omission could not be cured by including the decree in a supplementary record. A supplementary record cannot comprise documents which ought to be included in the original record of appeal (Kiboro v Posts & Telecom Corporation [1974] EA 155).

3. An application for extension of time should include a sufficient statement of the nature of the judgment and of the reasons for appeal to enable the court determine whether or not a refusal of the application would appear to cause an injustice.

4. The notice of appeal was not served in time, the delay was satisfactorily explained but there was no material upon which the court could exercise its discretion to extend time.

5. Where the respondent may have no locus standi to apply to strike out an appeal under rule 80 of the Court of Appeal Rules because he has not been served with the notice, he may do so under rule 42 of the same rules (Taracisio Githaiga Ruithibo v Mbuthia Nyingi Civil Appeal No 21 of 1982).

 6. Where there is a defect in the record of appeal, it can only be corrected by making an application under rule 4 to extend time to file the record of appeal afresh (Kamau v Kamau Civil Appeal No 49 of 1982).

Application for leave to include copy of decree in record of appeal dismissed with costs, second application to strike out record of appeal allowed with costs, application for extension of time to serve notice f appeal dismissed with costs.

Cases

1. Commercial Bank of Africa Ltd v General Motors Kenya Ltd [1982] KLR 185

2. Kiboro v Posts & Telecommunications Corporation [1974] EA 155

 3. Abdul Aziz Ngoma v Mungai Mathayo and Another [1976] KLR 61

4. Bhatt v Tejwant Singh [1962] EA 497

5. Bhaichand Bhagwanji Shah v Jamnadas & Co Ltd [1959] EA 838

6. Taracisio Githaiga Ruithibo v Mbuthia Nyingi Civil Appeal No 21 of 1982 (unreported)

7. Kamau v Kamau Civil Case No 49 of 1982 (unreported)

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 1(3); 4; 42(1); 44; 74(2), (3); 76(1); 80; 81(1); 81(1)(c); 81(2); 85(1)(h); 85(1)(b), (c), (h), (k); 87(1)

East African Power and Lighting Company Ltd v Kilimanjaro Construction Ltd

Court of Appeal, at Nairobi

November 21, 1983

Madan, Kneller JJA & Chesoni Ag JA

Civil Appeal No 43 of 1983

Arbitration - stay of proceedings - stay pending arbitration - party aware of threatened litigation by another in construction contract - failure by party to take any positive steps to refer dispute to arbitration - effect of failure - party applying for stay of proceedings upon being sued - whether party entitled to stay - refusal to grant stay - proper exercise of discretion - Arbitration Act (cap 49) section 6(1) (repealed).

Arbitration - suitability of arbitrator - building contract - agreement to refer indicating project manager to be arbitrator in case of dispute - contractor’s contract terminated by employer over complaints by project manager - project manager employer’s agent - whether project manager an independent or suitable arbitrator.

Costs - advocates’ costs - proceedings adjourned every time both advocates appeared together - one advocate not present when case argued - whether order for costs for two advocates justified.

The appellant contracted the respondent to erect transmission lines, to which contract the respondent supplied a permanent bond. Without notice, the appellant terminated the contract, ordered the respondent to stop all work and called in the permanent bond. The respondent sued for breach of contract and the appellant, having entered appearance, applied for a stay of proceedings pending arbitration as had been provided under the arbitration agreement between the parties. The respondent opposed the application on the grounds that the matters comprising the subject of the suit were not contemplated in the arbitration proceedings; that the appellant, being aware of the dispute, had chosen not to enforce or follow the arbitration before unilaterally terminating the contract; that the arbitrator was unfit or disqualified from acting as it was from its own conduct that the appellant had terminated the contract. The judge dismissed the appellant’s application for stay of the proceedings and the appellant appealed.

Held:

1. If a party is asked to refer a dispute to arbitration pursuant to an arbitration agreement, whether warned or not of the consequence of default, and such party replies that it does not waive the arbitration provision but does not take any other action to initiate or proceed with such arbitration, then such party is not entitled to a stay of proceedings upon filing of a suit.

 2. In order to be entitled to a stay of proceedings, the steps necessary for a reference to arbitration must be put in motion by the party on its initiative or in response to an invitation by the other party.

 3. The court can say that there was readiness and willingness to do all things necessary for the proper conduct of an arbitration if and when, either way, some positive step is taken which would lead to a reference to arbitration and whether the arbitration itself takes off or not is immaterial. Such positive action is one of the prerequisites to an order of stay of proceedings.

 4. The termination of the contract and the dispute over the quality of work or payment did not fall within the matters to be referred to arbitration.

 5. The consultants were employed by the appellant and had influenced the termination of the contract. They therefore could not act impartially and were not qualified to arbitrate.

6. It is doubtful whether a party who unilaterally repudiates a contract should be allowed to rely on it when he chooses to do so.

7. In a case where two advocates were instructed but only one actively dealt with the matter, it is unjustifiable to order costs for two advocates.

Appeal dismissed.

Cases

Kenya Oil Company Ltd v Abdul Sultan Jiwa Nathoo and Another CA 50 of 1977 (unreported)

Statutes

Arbitration Act (cap 49) section 6(1) (repealed)

Advocates

Le Pelley for Appellant

Obanda v Republic

Court of Appeal, at Nairobi November 18, 1983

Madan, Kneller JJA & Platt Ag JA

Criminal Appeal No 62 of 1983

Appeal - second criminal appeal - matters to be raised at - matters of law - section 361(1) Criminal Procedure Code (cap 75).

Criminal Practice and Procedure - charge- alternative charges –when alternative charge is proved beyond reasonable doubt - no conviction on alternative charge - effect of - use of alternative charges - when used - when alternative charges prejudice the accused - circumstances raising such prejudice.

Pleas - plea taking - pleas to several charges - prejudice arising from - dangers of.

Evidence - admissibility of - tape-recorded evidence - transcript of - whether such admissible as evidence or mere aide memoire - how court should receive tape-recorded evidence played in court.

The appellant was until his arrest the chief of the Kenya Bureau of Interpol. He was requested in that capacity to investigate a certain transfer of currency out of Tanzania via Kenya. During the conduct of investigations, he solicited and received a bribe from the owner of the aircraft that was reported to have carried the currency, one Mr Steyn. Mr Steyn reported this to the police and a trap was laid for him to give the “balance” of the bribe to the appellant at his house. The police tape-recorded the conversation between Mr Steyn and the appellant and later found the appellant in possession of the marked money. These findings were used to charge the appellant with three counts of corruption contrary to section 3(1) of the Prevention of the Corruption Act (cap 65).

The resident magistrate’s court sentenced him to four years’ imprisonment. His appeal to the High Court against the convictions was dismissed. He appealed to the Court of Appeal on the following grounds:

(i) that the matter was not one concerned with a public body in Kenya;

(ii) that the court failed to treat Mr Steyn’s evidence as accomplice evidence;

(iii) that the charge differed from the original complaint; and

(iv) that the assessment of the evidence was wrong;

Held:

1. At the time of the alleged crime, the appellant was an officer in a public body. The investigations he was charged with were requested of him as a senior superintendent of the Kenya Police attached to the Kenya Bureau of Interpol which is a public body.

2. It is not improper to make a finding that an alternative charge was proved beyond reasonable doubt and yet not to convict on it.

3. Second criminal appeals are only concerned with matters of law. The appellate court cannot therefore interfere with lawful sentences as set out in section 36(1) of the Criminal Procedure Code (cap 75).

4. In dealing with accomplice evidence, the court must first assess the truth or otherwise of the evidence, if the court finds that it is true, it should declare the witness as an accomplice and seek corroboration of the evidence. In this instance, the court did not expressly declare Mr Steyn as an accomplice. However, it did so indirectly as it assessed the truth of the evidence and sought corroboration on it, meaning it treated Mr Steyn as accomplice.

5. The transcript of the tape-recorded cassette of the conversation, the taperecorder and the cassette were not evidence, but were no more than an aide memoire for the witnesses as a notebook is for police officers (R v Mills [1962] 3 All ER 298 (CCA); R v Rose [1962] 3 All ER 298).

6. The taperecorder, the cassette and the transcript of the cassette were all admissible as evidence provided they were produced by the complainant and investigating officer. The admissibility of the actual evidence was subject to confirmation that the recorder worked properly and that the voices had been identified by persons who were familiar with the voices (R v Raojibhai Girdharbhai Patel and Another [1956], 29 KLR 112). In the circumstances the paraphernalia was properly admitted as aide memoire.

7. The cassette can only be played in court if the proper foundation is laid, ie that the evidence of the recording be given and the voices identified. It is not proper for the judges to attempt to identify the voices as they are not familiar with them (R v Raojibhai, infra).

8. The joinder of charges on different offences is possible and permissible even if they do not arise from the same acts or form part of a system of conduct as long as a sufficient nexus exists. The nexus can be said to exist if the evidence of one is admissible in the trial of the other.

9. Alternative charges are also permissible if the offences exhibit such similar features that they could be conveniently tried together in the general interests of justice which would take account of the interest of the accused, witnesses and police (R v Kray [1970] 1 QB 125; R v Ludlow [1971] AC 29).

10. If there are some special features which make joinder of charges prejudicial or embarassing to the accused or if the offences are too numerous or complicated, the trial magistrate should in his discretion sever them and order separate trials. In this instance, the charges against the accused had no special feature about them which prejudiced or embarrassed the accused or his advocate.

11. The discrepancies in the evidence of witnesses can only be a successful ground of appeal if the discrepancies were numerous and of great significance in the findings of the court.

Appeal dismissed.

Cases

1. Kalma Prasad v Sital Prasad 28 Calcutta 339

2. Rex v Wanjeri (1934) 11 EACA 93, 95

3. Kichingeri v R (1908) 3 EACA 1

4. Canisio Walwa v Reginam (1956) 23 ACA 453

5. R v Zacharia Shilisia Ageyo Cr App 64 of 1979 (unreported)

6. R v Mills [1962] 3 All ER 298 (CCA)

7. R v Rose [1962] 3 All ER 298 (CCA)

8. R v Raojibhai Girdharbhai Patel and Another (1956) 29 KLR 112

9. R v Kray [1970] 1 QB 125

10. R v Ludlow [1971] AC 29

11. R v Boardman [1975] AC 421

12. R v Blackstock [1979] 70 CAR 34

13. R v Mcglinchey The Times October 12, 1983

Statutes

1. Prevention of Corruption Act (cap 65) sections 2, 3(1)

2. Criminal Procedure Code (cap 75) sections 135, 361(1)

3. Penal Code (cap 63) section 302

Karugi & another v Kabiya & 3 others

Court of Appeal, at Nairobi November 16, 1983

Hancox JA, Chesoni & Platt Ag JJA

Civil Appeal No 80 of 1982

(Appeal from the High Court at Nyeri, O’Kubasu J)

Evidence – burden of proof–– in civil case – standard of proof – where case is heard by way of formal proof – whether averments in plaint and sworn and uncontradicted testimony of plaintiff sufficient to discharge burden of proof.

Civil Practice and Procedure – formal proof – burden of proof where case heard by formal proof – whether averments in plaint and plaintiff’s sworn testimony sufficient to discharge burden of proof.

Civil Practice and Procedure – parties to suits – action based on order made by public officer – necessity of impleading the officer making the order in such action.

The appellants filed a plaint in the High Court averring that the local County Council, a District Officer and a Chief had acted on the instructions of the respondents in ordering a stoppage of construction work on the appellants’ land. As a result, the appellants sought relief against the respondents.

The Court dismissed the suit on the ground that the appellants should have sued the Council, the District Officer and the Chief.

On appeal, it was contended that as there had been no valid defence to the plaint, it would have been sufficient to find the burden of proof discharged if the High Court had acted on the assertions in the plaint and the sworn evidence of the first plaintiff given by way of formal proof that he had made enquiries and discovered that the order had been given at the request of the respondents.

Held:

1. The burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended. The burden of proof is in no way lessened because the case is heard by way of formal proof.

2. The appellants had not proved that the Council, District Officer and the

Chief had acted on the respondents’ instructions.

3. The High Court judge had correctly dismissed the suit.

4. (Obiter) Per Platt Ag JA:

a) The words “formal proof” should not be used as they are no longer part of the Civil Procedure Rules particularly in orders IXA and IXB.

b) In actions touching on the act of a public body done in its own discretion, care must be taken since it is proper to implead the person who actually gave the order as he may have acted quite independently of persons who have caused the dispute.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) orders I rule 9; IXA rules 8, 9;

IXB rule 3

Advocates

Mr Waweru for the Appellants.

Sisto Wambugu v Kamau Njuguna

Court of Appeal, at Nairobi

November 14, 1983

Kneller, Hancox JJA & Chesoni Ag JA

Civil Appeal No 10 of 1982

Adverse possession - claim for adverse possession - meaning of adverse possession - proof of - elements of - when occupation becomes adverse - whether occupation under licence can be adverse - when time begins to run - whether time can run in favour of a licensee - element of dispossession - meaning of - merits of adverse possession when initial occupation was under an agreement - whether permissive occupation and adverse occupation can coexist.

Land - contract for sale of land - vendor’s right to rescind the sale - when time is of essence - application for specific performance of contract - principles applicable - effect of failure to perform contract - repudiation of the contract.

Specific performance - application for order of - circumstances under which granted - failure of claimant to perform his obligations under an agreement - whether such claimant is entitled to specific performance.

The appellant filed suit seeking the removal of a caution lodged on the suit land by the respondent, an order for eviction of the respondent and a perpetual injunction restraining him from trespassing on the land.The appellant, who was the registered owner of the suit land, claimed to have allowed the respondent to occupy it under a lease agreement. The respondent, however, claimed that he purchased the land from the appellant for Kshs 2,485 and had paid Kshs 2,300 and that he had received a notice of eviction after continuous and uninterrupted possession for nineteen years. He further claimed that he had refused to honour the notice and the appellant had gone to court. The respondent counterclaimed for transfer and registration of the suit land in his name by virtue of the sale agreement and also by virtue of adverse possession. The High Court gave judgment for the respondent and the appellant appealed.

Held:

1. The general principle is that until the contrary is proved, possession in law follows the right to possess.

2. In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. The respondent could and did not prove that the appellant had either been dispossessed or had discontinued possession of the suit land for a continuous statutory period of twelve years as to entitle him, the respondent, to title to that land by adverse possession.

3. The Limitation of Actions Act, on adverse possession, contemplates two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.

4. Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale agreement, the possession becomes adverse and time begins to run at the time the licence is determined. Prior to the determination of the licence the occupation is not adverse but with permission. The occupation can only be either with permission or adverse; the two concepts cannot co-exist. The respondent occupied the suit land originally under an agreement for sale of land being a licence from the appellant, although the respondent’s possession was exclusive and continuous but was not adverse; it only became adverse after the licence was determined.

5. The rule on ‘permissive possession’ is that possession does not become adverse before the end of the period during which the possessor is permitted to occupy the land. For the respondent’s claim for adverse possession to succeed, he must have an effective right to make entry and recover possession of land. He could not have that effective right because the occupation was under a contract, or licence, which had not been determined.

 6. Adverse possession means that a person is in possession, in whose favour time can run. Not all persons in possession can have time run in their favour. For example, time can run in favour of a tenant at will by virtue of section 12 of the Limitation of Actions Act but time cannot run in favour of a licensee. A licensee therefore has no adverse possession (Hughes v Griffin [1969] 1 WLR 23).

7. Where the claimant is a purchaser under a contract of sale of land, it would be unfair to allow time to run in favour of a purchaser pending completion when it is clear that he was only allowed to continue to stay because of the pending purchase because had it not been for the pending purchase the vendors would have evicted him. The possession can therefore only become adverse once the contract is repudiated. In this instance, time began to run once the appellant sent a letter to the respondent terminating the agreement.

8. Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is: the claimant’s possession is deemed to have become adverse to that of the owner after the payment of the last instalment of the purchase price. The claimant will succeed under adverse possession upon occupation for at least twelve years after such payment.

9. An order for specific performance cannot be granted to a purchaser who has not performed his part of the bargain or has failed to show that he was at all times ready and willing to do so. The respondent in this instance made no attempt to perform his obligation to pay the balance of the purchase price for seven years, he therefore cannot at this late stage obtain an order for specific and performance transfer of land.

10. Where an agreement does not state that time is of essence (as was the case here) and neither does the vendor give notice for making time of essence, such a vendor having failed to take the necessary steps to make time of the essence could not repudiate the contract on the ground of unreasonable delay by the purchaser to perform. In such a case the making of time of the essence has been waived and time can only be made of the essence by fixing of a reasonable time for performance.

11. The vendor is entitled to repudiate the contract of sale of the suit land, for failure of performance. The purchaser had failed to pay the balance of the purchase price and could not demand performance by the appellant. In this case there was originally a contract of sale of the suit land and the contract was lawfully repudiated by the appellant for nonpayment of the balance and no specific performance thereof in favour of the respondent can be ordered.

Appeal allowed.

Cases

1. Jandu v Kirpal [1975] EA 225

2. Mwangi Githu v Livingstone Ndeete Civ App 24 of 1979 (unreported)

3. Hughes v Griffin [1969] 1 WLR 23

 4. Wainaina v Murai [1976] Kenya LR 227

5. Hosea v Njiru & Others [1974] EA 526

6. Bridges v Mees [1957] 2 All ER 577

7. Hyde v Pearce [1982] 1 All ER 1029

8. Roberts v Wyatt [1810] 2 Taunt 268

9. United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd [1968] 1 All ER 104

10. Walli’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94

11. Kynoch Ltd v Rowlands [1912] 1 Ch 527, 534

 12. Littledale v Liverpool College [1900] 1 Ch 19

13. Leigh v Jack (1879) 5 Ex D 264

Texts

1. Megarry, R. (1975) A Manual on the Law of Real Property, London: Stevenson & Sons, 4th Edn p 1013

2. Hailsham, Lord, et al, (Ed), (1975) Halsbury’s Laws of England, London: Butterworths, 4th Edn p 366

Statutes

1. Land Control Act (cap 302)

2. Real Property Limitation (No 1) Act 1833 (UK)

3. Limitation Act 1939 section 10(1) (UK)

4. Limitation of Actions Act (cap 22) section 13(1)

Advocates

ET Gaturu for Respondent