Kabocha & 2 others v Kamau & another

Court of Appeal, at Nairobi December 8, 1987

Apaloo JA

Civil Application No NAI 37 of 1987

(In an intended appeal from a ruling of the High Court at Nairobi, Shields J)

Extension of time – extension of time for filing appeal – Court of Appeal Rules rule 4 – nature of court’s discretion in extending time.

Appeal – parties to appeals – effect of death of party – respondent to appeal dying after lodging of notice of appeal – whether appeal rendered incompetent – Court of Appeal Rules rule 83

The applicants sought extension of time to file an appeal on the ground that copies of proceedings and judgment were received after the expiry of the time prescribed for filing an appeal.

The applicants, however, had not copied the letter requesting for the record of the proceedings to the respondent.

It transpired during the hearing of the application that the first respondent had died after the lodging of the notice of appeal and in that regard, it was argued that the application was incompetent as it sought orders against a dead person.

Held:

1. The Court of Appeal Rules rule 4, which empowers this Court to enlarge time on any grounds it deems just, confers an unlimited discretion to extend time subject only to the requirement of justice.

2. As the applicants had not copied the letter requesting for copies of the record of the proceedings to the respondent, they were precluded by the proviso to rule 81 of the Court of Appeal Rules from excluding from the prescribed time the time required for the preparation and delivery of the copies.

3. The Court of Appeal Rules evinced a clear intent that an appeal by or against a party should not be negated by the fortuitous circumstance of the death of either party. Under rule 83(2), this application could be served on the legal representative of the deceased respondent once he was duly appointed.

Application stood down sine die pending a Registrar’s certificate and service of application on a legal representative of the first respondent.

Cases

1. Najeno v Serwanga [1974] EA 322

2. Dawson v Dove [1971] 1 All ER 554

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 4, 74(1), 77, 81, 83(2)

2. Civil Procedure Act (cap 21) section 2

Advocates

Mr Khanna for the Respondents.

Gabriel Kamau Njoroge v Republic

Court of Appeal, at Nairobi December 7, 1987

Platt, Apaloo JJA & Masime Ag JA

Criminal Appeal No 149 of 1986

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

Criminal Practice and Procedure – appeal – first appeal – duty of first appellate court to weigh evidence and make its own findings on issues of fact and law – whether failure to perform that duty may give rise to matter

of law for a second appeal - when misdirections on material points become matters of law.

Evidence – identification – dock identification–– whether dock identification reliable where no previous identification parade was conducted.

The appellant was convicted in a magistrate’s court for robbery contrary to section 296(1) of the Penal Code (cap 63). Evidence had been given of a robbery at a golf club in which the complainant was robbed of his vehicle,

a firearm and some personal effects. Nine days later, the appellant was arrested with the stolen firearm by a police officer who had pursued him from the scene of a second robbery at a bank.

 No identification parade was conducted but the complainant purported to identify the appellant in court as one of the persons who had taken part in the first robbery. The appellant denied his involvement and stated that during the second robbery, he was only a bystander and had been falsely arrested.

On the first appeal, the High Court made short findings and concluded that though the identity of the appellant was somewhat doubtful, his conviction would be upheld on the doctrine of recent possession the stolen firearm. The appellant filed a second appeal.

Held:

1. It is the duty of the first appellate court to remember that the parties are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions. The court should however bear in mind that it has neither seen nor heard the witnesses and it should make due allowance in that respect.

2. If the first appellate court fails to carry out that duty, it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Misdirections and non-directions on material points are matters of law.

3. A dock identification is worthless and a court should not rely on such an identification unless it has been preceded by a properly conducted identification parade. A witness should be asked to give a description of the accused and then a fair identification parade should be arranged.

4. There was evidence, though not overwhelming, that the appellant was found in recent possession of the complainant’s firearm and, accordingly, the Court of Appeal would not interfere with the findings of the lower courts in that regard.

5. The inference to be drawn from the appellant’s possession of the firearm was a matter of law. The High Court had properly drawn the inference that the appellant was in recent possession of the stolen firearm and that he had participated in the first robbery. He was therefore rightly convicted.

Appeal dismissed.

Cases

1. Pandya v R [1957] EA 336

2. Ruwalla v R [1957] EA 570

3. Kiarie v Republic [1984] KLR 739

4. Gidamebanya v R (1953) 20 EACA 318

5. Roria v R [1967] EA 583

6. R v Mohammed bin Allui (1942) 9 EACA 72

7. R v Shabani bin Donald (1940) 7 EACA 60

8. R v Turnbull [1976] 3 All ER 549; [1976] Crim LR 56; [1976] 3 WLR 445

Texts

1. Rachhodas, R & Thakore, DK (1958) The Law of Evidence (The Indian Evidence Act) Bombay: The Bombay Law Reporter Office 13th Edn p 151

2. Mitchell, SC (1970) Archbold Criminal Pleading, Evidence and Practice London: Sweet & Maxwell 40th Edn para 1348

Statutes

Penal Code (cap 63) section 296(1)

Advocates

Appellant unrepresented

N Harwood, Senior State Counsel, for the Republic

Hastings Irrigation (K) Ltd v Standard Chartered Bank (K) Ltd & 2 others

Court of Appeal, at Kisumu December 2, 1987

Hancox, Nyarangi JJA & Masime Ag JA

Civil Application No NAI 172 of 1987

(Appeal from a ruling of the High Court at Nairobi, Mbogholi-Msagha J)

Company law – debenture – appointment of receiver and manager under a debenture – circumstances in which a court will interfere with such appointment – party seeking to restrain receivers and managers appointed validly under debenture–– reluctance of court to interfere with such receivership where no compelling reasons are shown – Court of Appeal Rules rule 5(2)(b).

Appeal – inherent power of Court of Appeal – when such power may be invoked – where there are is no other specific remedy - Court of Appeal Rules rule 1.

The appellant company executed a charge by debenture of all its undertaking and property in favour of the first respondent bank in consideration of certain loan facilities. The debenture empowered the bank to appoint a receiver and manager of the charged property if the monies became due and payable by, among other means, demand or by breach of any of the covenants in the debenture. After the appellant had defaulted in servicing the loan facility, the first respondent appointed the second and third respondents as receivers and managers. The appellant sued the respondents in the High Court and sought a temporary injunction against them. The Court declined to grant the injunction and the appellant appealed the decision to the Court of Appeal which he also asked to grant a similar injunction.

Held:

1. It had not been shown by the appellant that the appointment of the second and third respondents as receivers and managers was an improper exercise of the power as contained in the debenture.

2. It is not appropriate for the court to interfere with a validly appointed receivership unless it is shown that the conduct of the receivers and managers was seriously oppressive or not in accordance with the recognised principles of law and of commercial practice or that there were clear and compelling reasons for doing so .

3. The inherent jurisdiction provisions of rule 1 of the Court of Appeal Rules can only be prayed in aid, in the absence of other specific remedies.

Application refused.

Cases

1. Mohamed v Madhani (1953) 20 EACA 8

2. Giella v Cassman Brown & Co Ltd [1973] EA 358

3. Simlani v Magotswe Civil Appeal No 1 of 1987 (unreported)

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 1; 5(2)(b)

2. Civil Procedure Rules (cap 21 Sub Leg) order L rule 16

3. Transfer of Property Act, 1882 section 69(1)

Advocates

Mr N Thiongo for the Appellant

Khayigila v Gigi & Co Ltd & another

Court of Appeal, at Mombasa November 26, 1987

Nyarangi, Gachuhi & Apaloo JJA

Civil Appeal No 119 of 1986

(Appeal from the High Court at Mombasa, Bhandari J)

Vicarious liability – master and servant – distinction between servant and independent contractor – when owner of a car may be liable for the negligence of its driver – vehicle driven by repair man against express instructions of owner – vehicle involved in accident – whether owner vicariously liable for accident - whether repair man an agent of owner or an independent contractor.

The 1st respondent firm was the owner of a motor-vehicle of which one Zainul was employed as the driver. When Zainul noticed some dents on the vehicle’s bodywork, he entrusted the repair work to the 2nd respondent who agreed to undertake the work for a consideration. Zainul drove the 2nd respondent to a place where the repairs were to be carried out and handed the ignition keys to him so that he could put the car in a nearby garage for the night. Zainul expressly instructed the 2nd respondent not to drive the vehicle except for that purpose. That night, however, the 2^nd respondent drove the vehicle to a place about two miles away where he knocked down and injured the appellant, a pedestrian.

The appellant sued the 2nd respondent as the tortfeasor and the 1^st respondent as the person vicariously liable for the accident. The 2^nd respondent’s liability was not contested but the High Court absolved the 1st respondent from liability.

Among the submissions made by the appellant on his appeal against the decision of the High Court was that the distinction between a servant and an independent contractor was too technical and that where a vehicle is insured, vicarious liability should be imposed as a matter of equity and public policy.

Held:

1. In order to fix liability on the owner of a car for the negligence of its driver, it was necessary to show either that the driver was the owner’s servant, or that at the material time the driver was acting on the owner’s behalf as his agent.

2. To establish the existence of the agency relationship, it is necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.

3. At the time of the accident, the 2nd respondent was not using the car at the 1st respondent’s request but he was using it furtively against its instructions. He was not an agent of the 1st respondent but an independent contractor.

4. Therefore, no liability attached to the 1st respondent on the well-known principle of respondeat superior and the High Court’s conclusion in that regard could not be faulted.

5. The legal rule for imposing vicarious liability should be the same whether the person sought to be affixed with responsibility for the wrong-doing of another is insured or not and there was no sound reason of equity or public policy compelling the Court to conclude otherwise.

Appeal dismissed.

Cases

1. Morgans v Launchbury [1971] 2 All ER 606

2. Anyanzwa v Gasperis [1981] KLR 10

3. Bachu v Wanaina [1982] KLR 108

4. Nakuru Automobile House Ltd v N Ziaudin [1987] KLR 317

Statutes

No statutes referred.

Advocates

Mr Jiwaji for the Appellant.

Mr Satchu for the 1st Respondent.

Shadrack Arap Baiywo v Bodi Bach

Court of Appeal, at Kisumu November 24, 1987

Nyarangi, Platt & Apaloo JJA

Civil Appeal No 122 of 1986

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

Civil Practice and Procedure – service of summons – service on adult member of family – when defendant cannot be found – duty to make reasonable inquiries before effecting such service – whether service made without reasonable inquiries as to defendant’s whereabouts is cured if defendant later receives summons in time – Civil Procedure Rules Order V rule 12.

Civil Practice and Procedure – judgment – default judgment – setting aside – principles the courts will consider in an application to set aside – applicant stating merely that he has a good defence without disclosing nature of the defence – whether applicant entitled to an order setting aside judgment.

The respondent filed a suit against the appellant in which an interlocutory judgment was given in default of the appellant entering an appearance or filing a defence.

The appellant’s application challenging the interlocutory judgment on the service of summons was dismissed, with the High Court holding that service of summons had been proper and the judgment had been duly entered.

The appellant appealed against the decision. His advocate submitted that the service of summons, which the process server swore was effected on a son-in-law of the appellant, was defective because the process server had not shown that the appellant could not be found.

Held:

1. Where there is no proper service of summons, then ex debito justitiae, a judgment by default must be set aside because such judgment can only be entered if there has been an initiating process concerning which a defendant is at fault.

2. A process server is required to make reasonable enquiries in order to serve the summons on the defendant personally. The affidavit of the process server was uninformative about his inability to find the appellant.

3. A service which is not entirely satisfactory and which might be set aside is capable of being cured and becoming a good service. It may be cured, as it was in this case, where the adult member of the family who has been served gives the summons to the defendant within time for the defendant to act.

4. The appellant bore the burden of disproving service and on the basis of the return of service and the affidavit of the process server, he did not discharge that burden.

5. The Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless he is shown to have applied the wrong principles.

6. The Court, in exercising its discretion to set aside the default judgment, would be guided by the rule that where the judgment has been obtained regularly, there must be an affidavit of merits, meaning that the appellant must satisfy the Court that he has a prima facie defence.

7. If there are merits in the defence, it would be unjust not to allow them to be heard, even if judgment was obtained regularly. On the other hand, if there are no merits, judgment should stand.

8. The appellant merely stated that he had a good defence; he did not put forward a defence. There was no ground upon which the Court could exercise its discretion to vary or discharge the judgment entered by default.

Appeal dismissed.

Cases

1. Kanji Naran v Ramji (1954) 21 EACA 20

2. Waweru v Kiromo [1969] EA 172

3. Evans v Bartlam [1937] 2 All ER 654

4. Mbogo v Shah [1967] EA 116

5. Patel v EA Cargo Handling Services Ltd [1974] EA 75

6. Amin Rasheed Shipping v Kuwait Insurance Co [1983] 1 All ER 873

7. Garcher v Jay (1885) 29 Ch D 50

8. M B Automobile v Kampala Bus Service [1966] EA 480, 484

9. Erukana Kavuma v ST Mehta [1960] EA 305

10. Pirbhai Lalji & Sons Ltd v Hassanali Devji [1962] EA 306

11. Robinson v Oluoch [1971] EA 376

Texts

Chitaley, DV & Rao SA The Code of Civil Procedure Vol II p 1670

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order IXA rules 5, 10; order V rules 9, 12, 17