Russell Co Ltd v Commercial Bank of Africa Ltd &

another

Court of Appeal, at Nairobi December 29, 1985

Kneller, Nyarangi & Platt JJA

Civil Appeal No 31 of 1985

(Appeal from the High Court at Nairobi. Todd J)

Injunctions – interlocutory injunctions – principles upon which such injunctions are granted – where applicant’s imminent loss may not be compensated by damages – when court is in doubt to decide application on a balance of convenience – appeal against refusal to grant injunction – discretion of court to extend interim injunctions pending the appeal – matters court should consider in exercising such discretion.

The appellant filed a suit against the respondents claiming that the first respondent had wrongfully exercised its statutory power of sale as a mortgagee and sold to the second respondent a residential piece of land in which the appellant had an interest. The appellant also applied for an interlocutory injunction to restrain the first respondent from parting with the proceeds of the sale and the second respondent from transferring the land.

The High Court (Trainor J) granted the interim injunctions and when the application came for hearing inter partes, the Court (Todd J) concluded that the appellant could be adequately compensated by damages and declined to grant the application for injunctions. The Court also refused to extend the interim injunctions pending the appeal against the refusal of the application.

The appellant appealed against the substantive refusal to grant the injunctions.

Held:

1. It was a misdirection for the judge to describe the suit premises as a commercial undertaking for which the plaintiff could be compensated in damages. The premises was a property of vital concern to the plaintiff and one of its managing directors and its purpose was to provide either revenue or shelter.

2. The Court of Appeal may reconsider the discretion exercised by the trial judge, where there was a misdirection.

3. Had the judge not misdirected himself, he would have found that the case under the third principle in Giella v Cassman Brown Co Ltd [1973] EA 358, that when a court is in doubt it will decide an application on the balance of convenience.

4. In exercising its discretion in an appeal against a refusal to order an injunction, the High Court should consider that the purpose of granting an injunction pending the appeal is to preserve the status quo for a short period until the notice of appeal has been lodged, after which the High Court can consider whether the nature of the appeal would be rendered nugatory if an injunction were not continued.

Appeal allowed.

Cases

1. Erinford Properties Ltd v Cheshire County Council [1974] 2 All ER 448; Ch 261

2. Giella v Cassman Brown Ltd [1973] EA 358 at p 360

3. Mbogo v Shah [1968] EA 93

4. Clarke v Japan Machines (Australia) PTY Ltd [1984] QLR 404

5. Williams & Glyn’s Bank v Boland [1981] AC 487; [1980] 2 All ER 408

6. Souza Figuerido & Co Ltd v Moorings Hotel Co Ltd [1960] EA 926

7. Cross v New Great Insurance Company Ltd of India [1966] EA 94

8. Jandu v Kirpal [1975] EA 225

9. Standard Chartered Bank v Walker [1982] 3 All ER 938; 1 WLR 141

10. Cuckmere Brick Company Ltd v Mutual Finance Ltd [1971] 2 All ER 633; [1971] Ch 949

11. Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54; 1 WLR 1349

Texts

Das, S.K. “The Torrens System in Malaya, Singapore” Malayan Law Journal, 1963

Statutes

1. Civil Procedure Act (cap 21) section 7

2. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 5A

3. Transfer of Property Act sections 52, 69A, 69B(2)

4. Registration of Titles Act (cap 281) sections 2, 23, 24, 32, 75, 80

5. Evidence Act (cap 80) section 46

Advocates

Mr Kamau Kuria for the Appellant

Attorney- General v Theuri

Court of Appeal, at Nairobi

December 19, 1985

 Kneller, Hancox & Nyarangi JJA

Civil Application No 51 of 1985

(Reference to the full Court from the decision of Platt Ag JA)

Appeal - notice of appeal – application for – to lodge notice of appeal – and file memorandum of appeal – exercise of discretion to allow such an application – principles applicable when exercising such discretion – constraint on unfettered discretion – when court may interfere with the exercise of discretion of a single judge.

Reference – of the decision of a single judge – to full court – nature of such reference.

Costs – award of – when a person is not represented by an advocate – whether costs can be awarded to a person who is not an advocate - nature of costs that may be awarded in such cases - provisions of the Court of Appeal Rules relating to payment of costs.

The respondent, who sought to be admitted as an advocate, obtained orders of mandamus against the Attorney-General, the Pricipal of the Kenya School of Law and the Secretary to the Council for Legal Education. The latter did not immediately comply with the order of the court but instead waited for the convening of a meeting of the Council of Legal Education which he considered would decide whether to comply with the court’s decision or to lodge an appeal against it. The Attorney- General later applied for an enlargement of the time for filing the Notice and Memorandum of Appeal as the time prescribed for doing so had expired. The application was allowed by one appellate judge. The respondent, who opposed the application, referred it to a full bench of the Court and sought the costs of both the application and the reference.

Held:

1. The discretion conferred on the Court to extend the time for lodging an appeal under rule 4 of the Court of Appeal Rules is a wide one and almost unfettered, the only constraint being that the terms should be just. The discretion is to be exercised judicially and must embrace all the circumstances of the case and the rights of the parties.
2. A reference to a full court is technically not an appeal but it has the nature of one. The reference Court would therefore interfere with the exercise of discretion by the single judge when it was clear that the judge exercised his discretion on improper grounds, the onus being on the party who sought the reference to establish such improper exercise.
3. The single judge had exercised his discretion on improper grounds because he appropriated the delay to the Secretary’s desire to take instructions before launching the appeal rather than to the State Counsel’s failure to take immediate action or seek instructions from his superior when the adverse decision was given.
4. The respondent was not entitled to advocate’s costs as he had acted in person. He was only entitled to recover the costs that he had actually incurred.

Cases

1. London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15
2. Gatti v Shoosmith [1939] 3 All ER 916; [1939] Ch 841; (1939) 161 LT 208; (1939) 55 TLR 1023; 83 Sol Jo 687
3. Meru Farmers Co-operative Union Ltd v Suleiman (No 2) [1966] EA 442
4. Mbogori and Mbogori v Farhat T Raliwala Civil Application No NAI 34 of 1985 (unreported)
5. Palata Investments Ltd v Burt & Sinfield Ltd (1985) Law Society’s Gazette September 11 p 2501; [1985] 2 All ER 517
6. Hart v Aga Khan Foundation (1983) Law Society’s Gazette October 5 p 2437; [1984] 1 All ER 239
7. Njagi v Munyiri [1975] EA 179

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 4, 26, 54(1)(b), 74(2), 93, 105(1), 108(2), 109
2. Civil Procedure Rules (cap 21 Sub Leg)
3. Rules of the Supreme Court order 62 rule 28A [UK]
4. Civil Procedure Act (cap 21) section 27(1)

 Advocates

The Respondent appearing in person

Mr F Shields, Chief State Counsel, for the Applicant

Editorial Note

The provisions of the Advocates Act (cap 16) section 13(a) allowing qualification as an advocate by virtue of service under articles have since been repealed.

Gurbaksh Singh & Sons Limited v Njiri Emporium Ltd

Court of Appeal, at Nairobi

 December 17, 1985

 Kneller JA, Platt & Gachuhi Ag JJA

 Civil Appeal No 31 of 1984

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

Civil Practice and Procedure - summary judgment – application for – when it should be granted – conditions to be fulfilled before granting summary judgment – when procedure may be used – liquidated claim – meaning of – Order 35 rule 1(4)(a) – when leave to defend should be granted – provisions of order 35 rule 1(1)(a) of the Civil Procedure Rules – interpretation of.

The appellant as landlord under an agreement let its house to the respondent as a tenant. The respondent later moved out of the house, allegedly without performing certain implied obligations in accordance with the agreement and the Transfer of Property Act 1882. The appellant subsequently filed a suit seeking cost incurred for performance of the obligations meant to have been done by the respondent as tenant. The respondent admitted the tenancy but denied the obligations claiming estoppel and waiver and asked for the suit to be dismissed. The appellant then applied for summary judgment which was dismissed with costs. The landlord prayed that its appeal be allowed and the ruling and the orders of the High Court be reversed and the motion be returned to the High Court for hearing and determination.

 Held:

1. Summary judgment for a plaintiff may be granted under order 35 rule 1(1)(a) for, inter alia a debt or liquidated demand with or without interest unless the defendant shows he should have leave to defend the suit as per order 35 rule 2(1).
2. Summary judgment should only be entered where the amount claimed has been specified, is due and payable or has been ascertained or is capable of being ascertained as a mere matter of arithmetic.
3. It cannot be said with certainty that the amount in the plaint had been specified or ascertained to warrant summary process being applied because the court will have to investigate the terms and conditions of the tenancy before it can make a decision.
4. An application for summary judgment cannot be allowed or applied in cases where a detailed defence has been filed, as the court cannot ignore the defence filed and proceed with the case by way of summary procedure.
5. Summary procedure should only be applied where the amount claimed has been specified, is due or payable or has already been ascertained as a mere matter of arithmetic.
6. A liquidated claim is one that needs no further inquiry as to how much ought to be claimed.
7. A sum does not become liquidated just because it is claimed but only if it is agreed or events on which it is based reveal it can be calculated independently of the sum claimed.
8. The appellant landlord’s claim was a liquidated demand within the meaning of order 35 rule 1(a) as they were specified sums, exact and quantified. The issue as to whether or not they were agreed, excessive or provable were irrelevant to the preliminary objection. The contents of the written statement of defence did not affect the issue of whether or not the claims were liquidated demands.
9. If the ascertainment of the sum claimed required investigation beyond mere calculation then the sum claimed was not a debt or liquidated demand but constituted damages at large.
10. The claim in this instance was not based on fixed figures but one can resort to reasonable standards. The defendant failed to repair the house and keep up the garden and the plaintiff was claiming the money spent, as a debt.

 Appeal allowed. Ruling reversed, respondent’s preliminary objection overruled, appellants motion remitted to the High Court.

Cases

1. Kenya Flamingo Airways Limited v Eric Snowball and Peter Thornycroft Trading as ESE Hire Civil Appeal Application 31 of 1980; [1981] KLR 299
2. Baker (GL) Ltd v Barclays Bank [1956] 1 WLR 1409; [1956] 3 All ER 519
3. Knight v Abbott, Page & Co (1882 – 83) 10 QBD 11
4. Lagos v Grunwaldt [1910] 1 KB 41
5. Ecksteen v Kutosi s/o Bukua (1951) 24 KLR 90
6. Mwatsahu v Maro [1967] EA 42
7. Gohil v Wamai Civil Appeal No 42 of 1982; (1982-88) 1 KAR 116; [1983] KLR 489
8. Heptulla v Noormohamed Civil Appeal 62 of 1983; [1984] KLR 580
9. Gilani v Nyanza Supermarket Limited Nairobi High Court Civil Case No 655 of 1983 (unreported)

Texts

1. Jacob, I.H. et al. (Eds) (1964) The Annual Practice London: Sweet & Maxwell Vol I p 55
2. Jacob, I.H. et al. (Eds) The Supreme Court Practice London: Sweet & Maxwell Centenary Edn Vol I p 43
3. Hailsham, Lord et al. (Eds) (1975) Halsbury’s Laws of England 4th Edn Vol XII paras 1109– 1200
4. Bullen, E., Leake, S.M (1863) Bullen and Leake’s Precedents of Pleading London: Sweet & Maxwell 2nd Edn p 28

Statutes

1. Transfer of Property Act 1882
2. Civil Procedure Rules (cap 21 Sub leg) order VI rule 3(1), order XXXV rules 1(1)(a), 2(1), 8(2)
3. Common Law Procedure Act 1852 [UK] section 26
4. Rules of Supreme Court 1956 [UK] order 13 rule 3

Advocates

1. Mr Khanna for the Appellant
2. Mr Nowrojee for the Respondent

C N M   v Republic

Court of Appeal, at Nairobi

 December 11, 1985

Nyarangi JA, Platt & Gachuhi Ag JJA

Criminal Appeal No 116 of 1985

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

Criminal law – insanity – defence of – defence raised by accused – on whom burden of proving insanity rests – standard of proof – Criminal Procedure Code (cap 75) section 166(1).

Evidence – insanity – defence of – to offence of murder - defence of insanity raised by accused – burden of proving insanity – person with burden - standard of proof – proof on a balance of probabilities – matters that need to be proved to discharge burden of proof – manner of summing up to assessors – when finding of lesser offence of manslaughter may be made - Criminal Procedure Code (cap 75) section 166(1).

Criminal Practice and Procedure – summing up – to assessors by judge – in a charge of murder – where accused raises defence of insanity - need for notes on summing up – matters that should be included in summing up.

The appellant was charged and tried with the murder of his brother. The evidence given in the case showed that the appellant had a violent disposition and a psychiatrist testified that he was suffering from a severe mental illness known as acute psychosis, though no medical evidence was given regarding his mental state at the time he killed the deceased. His advocate, who had tried to put in the defence of insanity, stated in his final address that the only rational explanation of the accused’s conduct was insanity. The trial judge had noted in the record of the case that he had summed up to the assessors though there was nothing recorded to show how the judge addressed the assessors. All the assessors had advised the judge that the accused was not guilty of murder and they had returned a finding of manslaughter. The appellant was convicted of manslaughter and sentenced to 12 years’ imprisonment. He appealed.

Held:

1. Where an accused person raises the defence of insanity, the burden of proving insanity rests with the accused, because a man is presumed to be sane and accountable for his actions until the contrary is shown.
2. The burden on the accused to prove insanity is not as heavy as the one of the prosecution. The burden is discharged by proving on a balance of probabilities that it seemed more likely that due to mental disease, the accused did not know what he was doing at the material time, or that what he was doing was wrong, and so he could not have formed the intent to kill the deceased.
3. Whether the defence has proved the case of insanity is a matter of fact for the judge and assessors. Where it is found that the accused was insane, a special finding may be entered; if he is found to have been sane, the finding may be murder or manslaughter; and in the case of manslaughter, that would be due to the fact that although sane, by reason of illness, the accused did not appreciate the full consequence of his act.
4. It was not clear whether these three possibilities were present in the mind of the trial judge or that he had included them in his summing up to the assessors.
5. From the evidence in the case and the opinions of the assessors, the appellant’s insanity at the time of the alleged offence was a more reasonable conclusion than that he was sane. Had the trial judge set out the three possibilities, the assessors would probably have found on the balance of probabilities that the appellant was insane at the time he committed the offence.

Appellant’s conviction and sentence set aside, special verdict that appellant guilty but insane.

Cases

1. Ellis v R [1965] EA 744 2. Upar v Uganda [1971] EA 98

Statutes

1. Criminal Procedure Code (cap 75) sections 166(1), 322(1)
2. Penal Code (cap 63) section 205

Advocates

1. Mr Ombete for the Appellant

Kairu v Shaw & 3 others

Court of Appeal, at Nairobi December 9, 1985

Madan Ag CJ, Kneller & Nyarangi JJA

Civil Appeal No 21 of 1985

(Appeal from the High Court at Nairobi, Butler-Sloss J)

Civil Practice & Procedure - trial judge’s notes – application for leave to insert omissions and errors in the record of appeal – where certain facts have been left out from the trial judge’s notes – where judge’s notes are at variance with those of counsel taken during the proceedings.

Appeal – record of appeal – correction of – application for leave to insert certain omissions in the record of appeal – when omissions are vital and likely to affect the courts’ decision on appeal.

The appellant made an application for leave to insert certain omissions into the record of appeal said to have been left out from the trial judge’s notes. It was argued in support of the application that the summons were vital to the court’s decision at appeal.

Held:

1. It is the practice, and a good practice it is, to normally accept the trial judge’s notes as correct.

2. In this instance, the application was exceptional in that the omissions were backed by the notes of the evidence taken contemporaneously by the plaintiff’s advocate at the trial.

3. Considering also the possibility of the omissions affecting the result of the appeal, the Court is of the view that this application ought to be allowed.

4. An advisable manner of dealing with the situation would be to give leave to the plaintiff to call additional evidence before the trial court preferably before the judge who tried the suit.

Proceedings remitted to the High Court for the hearing of additional of evidence.

Cases

No cases referred to.

Statutes

No statutes referred.