Nzoia Sugar Co Ltd v Fungututu

Court of Appeal, at Kisumu December 24, 1986

Platt JA

Civil Application No NAI 104 of 1986

(In an intended appeal from the judgment of the High Court at Kakamega,

Aganyanya J)

Civil Practice and Procedure - applications – interlocutory applications - failure to cite enabling statute in the application - motion omitting to state “Court of Appeal Rules” - effect of such omission – delay in filing appeal caused by misunderstanding between instructing advocates and the instructed advocate – either party claiming likelihood of prejudice – whether time should be extended – Court of Appeal Rules rules 4, 42.

Advocate – instructing of advocate by another – instructions to defend a party - where instructed advocate in distant place – some guidelines in giving such instructions.

A firm of advocates in Nairobi instructed an advocate outside of Nairobi to defend the applicant in a suit filed against it by the respondent in the High Court at Kakamega. The defence failed and judgment was given in favour of the plaintiff/respondent. The instructed advocate informed the firm of advocates in Nairobi of this outcome, stating that copies of the proceedings had been applied for in the event that the firm intended to appeal. However, no notice of appeal was lodged. An exchange of correspondence followed from which it emerged that the Nairobi firm had been under the impression that the instructed advocate would proceed to file an appeal while the advocate, on his part, had chosen not to file the appeal without the express instructions of the firm.

As the time within which to appeal had ran out, the advocate applied for leave to lodge a notice of appeal and a record of appeal out of time, attributing the delay to a genuine misunderstanding between his firm and the Nairobi advocates. The respondent’s advocate opposed the application, arguing that the advocate had no authority to bring it, that the motion failed to specify the legal authority on which it was based and that the court should consider the prejudice to the respondent.

Held:

1. The applicant’s advocate had authority to bring this application as he had been given instructions to file it.

2. Though the motion was stated to be brought “under Rules 4 and 42” without stating “of the Court of Appeal Rules”, rules 4 and 42 could only refer to the Court of Appeal Rules and there was no difficulty which arose out of that omission.

3. There would be prejudice to one side or the other if the application was or was not granted. The prejudice claimed by both sides cancelled each other out.

4. (Obiter) Where a case has been decided against an instructed advocate, it is primarily the duty of the instructing advocates, from whom the authority stems, to give instructions that the instructed advocate should file a notice of appeal.

5. (Obiter) It is the instructed advocate’s duty when getting instructions to know what the client wishes to do if the decision goes against the client. This will enable him to advise on whether an appeal should be lodged but in the meanwhile the appeal process can proceed.

6. (Obiter) Where distances are such that the time for filing an appeal may run out during the exchange of correspondence between the advocates, instructions to prosecute or defend a case should include instructions as to an appeal.

Application allowed.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 5(2)(b), 42

Advocates

Mr Minishi for the Applicant

Mr Nakhone for the Respondent

Azolozo v Republic

Court of Appeal, at Kisumu

September 10, 1986

Hancox JA, Platt & Gachuhi Ag JJA

Criminal Appeal No 88 of 1985

(Appeal from the High Court at Kisumu, Schofeld J)

Criminal law – forgery – contrary to Penal Code (cap 63) section 349 – what constitutes forgery – accused person obtaining payment against false statements made in otherwise genuine travel warrants – whether offence of forgery committed.

Appeal – right of – whether the Republic has a right of appeal against acquittal by the High Court on an appeal from a subordinate court – Criminal Procedure Code (cap 75) sections 348A, 354(3)(c), 361, 379.

Statutes – interpretation of – Criminal Procedure Code (cap 75) sections 348A, 354(3)(c), 361, 379 – whether statute conferring on the Republic a right of appeal against acquittal by the High Court on an appeal from a subordinate court.

The appellant, who was employed as a clerk at a Provincial Police Headquarters, was alleged to have obtained payments from his employer against fictitious road travel warrants, in that contrary to what was stated in the warrants, no journeys had actually been undertaken. He was charged with several counts of forgery and with stealing by a person employed in the public service contrary to the Penal Code (cap 63) sections 349 and 280 respectively.

The trial magistrate found that the travel warrants made by the appellant were false and convicted him on the counts of forgery. On the charge of stealing, he found the action of the appellant in claiming against journeys purportedly made using his own vehicle raised the inference that he had stolen the amounts stated in those warrants and convicted him on six counts of the offence.

The appellant’s first appeal to the High Court was allowed in respect of four of the counts of forgery and with regard to the charge of stealing, it was held that the appellant may have obtained the money on improper documentation but there was no taking or conversion on his part sufficient to prove theft and his appeal against that charge was allowed.

The appellant appealed against the dismissal of his appeal on the remaining counts of forgery and the Republic, on the other hand, sought to cross-appeal against the decision of the High Court in allowing the appeal on the counts of stealing.

Held:

1. The documents allegedly used by the appellant were that which they purported to be, namely warrants authorizing journeys by various persons. Though the warrants contained false statements and the journeys said to be authorized were false, it could not be said that the warrants were forged because they did not purport to be what they were not and the appellant was entitled to succeed on his appeal in respect of the counts of forgery.

2. In order for a right of appeal to exist, such right must be specifically conferred by statute.

3. The Criminal Procedure Code (cap 75) section 361 was originally designed to cater for, among other matters, appeals by convicted persons and since that section was never enlarged after the enactment of section 348A, it was not legitimate in this case to construe section 361, in its general words, as catering for appeals against acquittals.

4. The term “A party to an appeal from a subordinate court” in the Criminal Procedure Code section 361(1) was confined to a convicted person and did not include the Attorney-General. Accordingly, the Republic was not entitled to cross-appeal to the Court of Appeal from the decision of the High Court allowing the appeal.

5. (Obiter, Per Hancox JA) The evidence would have established charges of fraudulent false accounting within the Penal Code (cap 63) section 330(a) but no such charges were brought.

Appeal allowed, cross appeal struck out.

Cases

1. Republic v Oyier, Francis Otieno [1985] KLR 353

2. Republic v Zachariah Shilisia Agweyu [1980] KLR 62

3. Chandaria v Republic [1966] EA 246

4. King-Emperor v Benoari Lal Sarma and others [1945] 1 All ER 210

5. Uganda v Shah, Khimichand Kalidas [1966] EA 30

6. Republic v Kimani & 4 others [1986] KLR 292

7. Public Prosecutor v Oie Hee Koi [1968] AC 839; 1 All ER 419

8. Smith v Brown (1871-72) LR 6 QB 729

9. Seward v Vera Cruz (1884) 10 App Cas 59

10. Attorney-General v Silem (1864) 10 HLC 704

11. Gelberg v Miller [1961] 1 WLR 153; [1961] 1 All ER 618

Texts

1. Craies, W.F., Craies on Statute Law London: Sweet & Maxwell 7^th Edn p 122

2. Maxwell, P.R. (1969) The Interpretation of Statutes London: Sweet & Maxwell 12th Edn p 47

3. Turner, J.W.C. (1964) Russell on Crime London:Stevens & Sons 12^th Edn p 1225

4. Turner, W.C. (Ed) (1966) Kenny’s Outlines of the Criminal Law 19^th Edn p 387

Statutes

1. Penal Code (cap 63) sections 280, 330, 347, 349

2. Criminal Procedure Code (cap 75) sections 347(2); 348A; 354(3)(c); 361; 361(1), (3), (4), (5), (6), (7), (8); 379; 379(5)

3. Act No 13 of 1967 section 3

4. Administration of Justice Act 1960 [UK] section 1(1)

Advocates

Appellant in person

Mr JM Bwonwonga, Principal State Counsel, for the Respondent.

Jabane v Olenja

Court of Appeal at Kisumu September 2, 1986

Kneller, Hancox & Nyarangi JJA

Civil Appeal No 2 of 1985

(Appeal from the High Court at Kisumu, Schofield J)

Damages – general damages – assessment of – matters the court should consider in awarding general damages – damages for personal injuries – pain, suffering and loss of amenities – limb fractures, lacerations, head injury and haemorrhagic shock – damages for loss of future earnings - quantum of damages.

Negligence – contributory negligence – apportionment of liability – road traffic accident – appellant’s vehicle encroaching onto respondent’s lane – failure by respondent to take action to avoid collision – whether respondent guilty of contributory negligence.

Costs – awarding of – where appellant’s appeal largely successful – whether appellant entitled to costs of appeal.

The respondent’s motor vehicle was involved in a collision with another vehicle driven by an employee of the appellant and as a result, the respondent suffered personal injuries and the total loss of his vehicle.

The respondent was at the time aged 36 years and his injuries included damage to his kidneys, fractures in his leg and middle finger, injury to his left eye and lacerations on his face and limbs, a head injury and haemorrhagic shock. After treatment, he remained with a shortened right hand and leg, inability to bend at the knee, a distorted iris and a scarred face.

The High Court found the appellant liable for the accident and awarded the respondent Shs 450,000 in general damages for pain, suffering and loss of amenities. The court considered that the respondent risked early retirement due to his residual disabilities and applying a multiplier of ten years and a multiplicand consisting of his earnings at the date of the hearing, it arrived at an award of Shs 336,600 for loss of future earnings.

The appellant appealed against the findings of the trial court on the awards and on the cause of the accident.

Held:

1. Among the points that the Court of Appeal should consider in approaching an award of damages made by a trial judge are that:

a) Each case depends on its own facts;

b) For the sake of those who have to pay insurance premiums, medical fees or taxes, the awards should not be excessive;

c) Comparable injuries should attract comparable awards;

d) Inflation should be taken into account; and

e) Unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence, or is so low as to be an erroneous estimate, it should be left alone.

2. The award of damages for pain, suffering and loss of amenities was excessive and had to be reduced because account had not been taken of the remoteness of some of the respondent’s later injuries from injuries caused by the accident. The appropriate award under this head would be Shs 352,000.

3. The trial judge was correct in choosing the multiplicand and multiplier for the respondent’s loss of future earnings and though he did not take into account the respondent’s reduced pension on early retirement and the opportunity to invest part of it, this award would not be disturbed as there was both no sufficient evidence or appeal against the matter.

4. The appellant and the respondent were negligent in the ratio of 90% and 10% respectively, as there had been a failure by the respondent to take sufficient action to avoid the collision.

Appeal allowed.

Cases

1. Witu Rubber Estate v Peake (1913/1914) 5 EALR 17

2. Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177

3. Saif v Sholan (1955) 22 EACA 270

4. West (H) & Son v Shephard [1964] AC 326; [1963] 2 All ER 625

5. Selle v Associated Motor Boat Company [1968] EA 123

6. Williamson Diamonds Ltd v Brown [1970] EA 1

7. Bhogal v Burbidge [1975] EA 285

8. Mute v Elikana [1975] EA 201

9. Butt v Khan [1981] KLR 349; (1982-88) 1 KAR 1

10. Lalji v Toka [1981] KLR 325

11. Mwangi, Ephantus v Wambugu [1984] KLR 453; (1982-88) 1 KAR 278

12. Shabani v City Council of Nairobi [1985] KLR 516; (1982-88) 1 KAR 681

13. Mwanasokoni v Kenya Bus Services [1985] KLR 931; (1982-88) 1

14. Southern Engineering Co Ltd v Mutia, Musingi [1985] KLR 730; (1982-88) 1 KAR 878

Texts

Kemp, D.A. (Ed) Kemp & Kemp: The Quantum of Damages in Personal Injury and Fatal Accidents Claims London: Sweet & Maxwell

Statutes

No statutes referred.

Advocates

Messrs S S Dhanji and R D Menezes for the Appellant

Mr J Wasuna for the Respondent

Shah v Bapat

Court of Appeal, at Kisumu June 21, 1986

Kneller JA, Platt & Gachuhi Ag JJA

Civil Appeal No 56 of 1986

(Appeal from the High Court at Eldoret, Patel J)

Contract – privity of – contract of sale of machine–– seller’s cash sale receipt stating that machine guaranteed for one year by a third party – machine breaking down after three months - buyer suing seller for breach of guarantee – whether seller liable on guarantee.

The respondent purchased a video machine from the appellant, who wrote on the back of the cash sale receipt that the machine was guaranteed for one year by another entity, namely, Musicraft Kenya Ltd. The machine broke down after three months and the respondent returned it to the appellant, who in turn forwarded it to Musicraft for repair.

Within the six months that it took to repair the machine, the respondent had sued the appellant in contract for damages for breach of guarantee and for loss of user.

The appellant’s defence denied the existence of any guarantee given by him for the machine’s proper performance but the trial magistrate found that the appellant was liable on such a guarantee and gave judgment for the respondent. The appellant’s first appeal to the High Court was rejected and he appealed to the Court of Appeal.

Held:

1. From the evidence, the machine had been guaranteed by Musicraft and not by the appellant and the terms of the guarantee were unclear.

2. There was no guarantee contracted by the appellant to refund the purchase price of the machine or to replace it with a new one or to repair it within a reasonable time and no such obligations were pleaded or proved.

Appeal allowed.

Cases

No cases referred to.

Statutes

No statutes referred to.

Advocates

Mr ALR Shah for the Appellant

Mr Menezes for the Respondent

Onjula Enterprises Ltd v Sumaria

Court of Appeal, at Kisumu May 13, 1986

Hancox, Nyarangi JJA & Platt Ag JA

Civil Appeal No 33 of 1985

(Appeal from the High Court at Kakamega, Gicheru J)

Civil Practice and Procedure – service – service of appeal on party directly affected by appeal – necessity of such service under Court of Appeal Rules rule 76(1) - meaning of “party directly affected by appeal”– where the appeal is a second appeal - where party not served is original defendant who was not a party to first appeal – second appeal based on objection proceedings likely to affect property belonging to party not served – effect of failure to serve such party.

Civil Practice and Procedure – parties – parties to appeal – parties directly affected by appeal – meaning of “party directly affected by appeal” - necessity of service of appeal on such party – Court of Appeal Rules rule 76(1) – failure to serve such party – effect of.

The respondent sued one Kilel in a magistrate’s court for the recovery of certain monies and after judgment was entered, the respondent attached a certain motor vehicle in execution of the decree. The appellant company filed proceedings objecting to the attachment of the vehicle on the ground that it had purchased it from Kilel. The appellant’s objection was dismissed and its appeal to the High Court was unsuccessful. On the appellant’s/ objector’s appeal to the Court of Appeal, the respondent moved the Court to strike out the appeal on the objection that Kilel, the original defendant and judgment debtor, being a person directly affected by the appeal, had not been served with the notice of appeal as required by rule 76(1) of the Court of Appeal Rules. Kilel, however, had also not been served with the appellate process for the first appeal to the High Court and was not a party to it and the respondent’s advocate had not then taken any objection in that regard.

Held:

Platt Ag JA dissenting:

1. It is a mandatory provision of rule 76 sub-rule (1) of the Court of Appeal Rules that all parties directly affected by an appeal must be served.

2. The original defendant, as judgment-debtor, was a person directly affected by the appeal as the court orders affected his actions and his property.

3. It was incumbent on the appellant under the proviso to rule 76(1) to apply to the Court for a direction that service on a person who took no part in the proceedings in the High Court be dispensed with, but no such application had been made.

Appeal struck out.

Cases

1. Openda v Ahn [1984] KLR 208; (1982-88) 1 KAR 294

2. Ruithibo v Nyingi, Mbuthia [1984] KLR 505

3. Rodoi Holdings Ltd v Kantilal Chandulal Shah Civil Appeal No 50 of 1982 (unreported)

4. Sheikh v Abdul Gafoor Sheikh & another Civil Appeal No 12 of 1984 (unreported)

5. London Association for Protection of Trade & another v Greenlands Ltd [1916] 2 AC 15; (1916-17) ER 452; 85 LJ KB 698; 114 LT 434; 32 TLR 281; 60 Sol J 272

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 76; 76(1); 85(1)(h), (2A)

2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 10; order XXI rules 53, 56, 57, 57(2); order XLI rules 3, 17

Advocates

Mr Omondo for the Appellant/Objector

Mr Menezes for the Respondent

Onyango & another v Luwayi

High Court, at Kisumu May 6, 1986

Kneller, Hancox & Nyarangi JJA

Civil Appeal No 93 of 1985

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

Appeal – jurisdiction of Court of Appeal – circumstances in which the Court will interfere with concurrent findings of fact of two lower courts – whether the Court has jurisdiction to extend the time for applying for consent of Land Control Board under the Land Control Act (cap 302) or to give leave for such application.

Land – agreement for sale of land – agricultural land – failure to obtain consent of Land Control Board to sale transaction - effect of – whether Court of Appeal may extend time for applying for such consent – whether specific performance may be granted for such agreement.

The respondent sued the first appellant for eviction from a parcel of agricultural land of which he (the respondent) was registered as the owner. The appellants’ case was that the land had been purchased by the first appellant from the respondent through the second appellant, and the sale was the subject of a dispute before a panel of elders.

The trial magistrate gave judgment in favour of the respondent and the appellants’ appeal against that decision to the High Court was unsuccessful.

The appellants appealed to the Court of Appeal contending that the magistrate had no jurisdiction to hear the suit and that the judge erred in dismissing their case for lack of the consent of the land control board to the sale transaction. They further asked the court for leave to apply to the High Court for an extension of the time in which to apply for the consent.

Held:

1. The Court of Appeal would not interfere with the findings of fact of the two lower courts unless it was clear that the magistrate and the judge had so misapprehended the evidence that their conclusions were based on incorrect bases. The magistrate and judge were right in their findings.

2. By virtue of the Land Control Act (cap 302) section 6(1), the sale transaction was void for all purposes owing to the failure to obtain the consent for it from the divisional land control board which had to be made within six months of the making of the agreement.

3. As the agreement was of no effect, specific performance could not be granted to the appellants in respect of it and it could not be the basis of a reference to a panel of elders.

4. The magistrate had jurisdiction to hear the suit, which related to title, by virtue of the Registered Land Act (cap 300) section 159.

5. By virtue of the proviso to the Land Control Act section 8(1), the Court of Appeal had no jurisdiction to extend the period for making an application for consent of the land control board or to give leave for such application.

Appeal dismissed.

Cases

Abdulla v Rubia (1917/1918) 7 EALR 73

Statutes

1. Magistrate’s Jurisdiction (Amendment) Act No 14 of 1981

2. Land Control Act (cap 302) section 6(1), (3); 8(1)

3. Magistrates’ Courts Act (cap 10) section 9A

4.Registered Land Act (cap 300) secion 159

5. Statute Law (Repeal and Miscellaneous Amendments) Act 1980

6. Civil Procedure Rules (cap 21 Sub Leg) order I rule 2

Advocates

Mr Minishi for the Respondent.